United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendants' motion for
an award of attorneys' fees [DE 32], as well as
plaintiffs motions for an extension of time [DE 38] and leave
to file a supplemental response [DE 39]. The motions have
been fully briefed and are ripe for disposition. For the
reasons discussed below, defendants' motion for an award
of attorneys' fees [DE 32] is DENIED and plaintiffs
motion for an extension of time [DE 38] and motion for leave
to file a supplemental response [DE 39] are GRANTED.
Court dispenses with recitation of the case and adopts, as if
fully set forth herein, the factual and procedural background
that the Court provided in its order on September 25, 2018.
October 2018, plaintiff appealed this Court's dismissal
of her complaint. [DE 34]. The Fourth Circuit dismissed
plaintiffs appeal for failure to prosecute. [DE 43]. Mandate
issued on March 4, 2019. [DE 44]. In October 2018, defendants
moved for an award of attorneys' fees in the amount of
$60, 062.50 under 42 U.S.C. § 1988. [DE 32]. Plaintiff
filed a response in opposition as well as two other motions,
requesting an extension of time to file her response and
leave to file a supplement to her response. [DE 37-39].
outset, for good cause shown, plaintiffs motion for an
extension of time and motion for leave to file a supplemental
response are granted. Plaintiffs response in opposition to
defendant's motion for an award of attorneys' fees
is, therefore, treated as timely.
defendants argue that an award of attorneys' fees is
justified by 42 U.S.C. § 1988. Section 1988 authorizes
the prevailing party in any civil rights action, including an
action under Section 1983, to recover reasonable
attorneys' fees. While defendants and plaintiffs alike
are entitled to an award of fees under the statute, the
standard for recovery by a defendant differs from the
standard for a plaintiff. Lotz Realty Co. v. U.S.
Dep't of Housing and Urban Dev., Ill. F.2d 929, 931
(4th Cir. 1983). To recover, a defendant must show that the
plaintiffs claim was "frivolous, unreasonable, or
groundless, or that the plaintiff continued to litigate after
it clearly became so." Id;, see also Christianburg
Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). The
defendant need not demonstrate that the plaintiff acted in
bad faith, as a showing that the plaintiffs action was
meritless, groundless, or without foundation will suffice.
DeBauche v. Trani, 191 F.3d 499, 510 (4th Cir.
1999). As the Fourth Circuit has further explained:
[T]he mere fact that a civil rights plaintiff lost her case
does not render her claim frivolous, unreasonable, or
groundless. . . . The purpose of distinguishing between a fee
award being made to a successful plaintiff, on the one hand,
and such an award being made to a prevailing defendant, on
the other, arises out of the legitimate concern for the
"chilling effect" that the latter type of award
would have on potential civil rights plaintiffs-and their
lawyers-in deciding whether to initiate lawsuits. See
Lotz, 111 F.2d at 932. We have explained, however, that
"[w]hen a court imposes fees on a plaintiff who has
pressed a 'frivolous' claim, it chills nothing that
is worth encouraging." Hutchinson v. Staton,
994 F.2d 1076, 1081 (4th Cir. 1993).
Unus v. Kane, 565 F.3d 103, 127 (4th Cir. 2009).
Therefore, in determining whether to award attorneys'
fees to defendants, the Court must decide whether plaintiffs
claim was frivolous, unreasonable, or groundless, or whether
plaintiff continued to litigate after it became clear that
his claim was frivolous, unreasonable, or groundless.
discretion, the Court finds that no award of attorneys'
fees is justified in this matter. Plaintiff brought a variety
of claims arising from her arrest and termination from her
housekeeping job on the suspicion that she had stolen a
hospital patient's Kindle e-reader. In dismissing these
claims, the Court found that plaintiff had either failed to
bring her claims within the applicable statute of limitations
or had failed to state claims upon which relief could be
granted. Plaintiff noticed an appeal of the dismissal of her
claims but that appeal was dismissed for failure to
prosecute. But plaintiffs claims were not objectively
frivolous, unreasonable, or groundless under Lotz.
Indeed, it is possible that but for plaintiffs days-late
filing of her complaint, she had alleged sufficient facts to
state civil rights claims upon which relief could have been
granted. And even as to the timeliness issue, plaintiff
reasonably-but still erroneously-argued that she had complied
with the applicable statute of limitations. As such,
defendants are not entitled to an award of attorneys'
fees under 42 U.S.C. § 1988.
also argue that they should be awarded reasonable
attorneys' fees under N.C. Gen. Stat. § 6-21.5. The
statute provides that "[i]n any civil action . . . the
court, upon motion of the prevailing party, may award a
reasonable attorney's fee to the prevailing party if the
court finds that there was a complete absence of a
justiciable issue of either law or fact raised by the losing
party in any pleading." N.C. Gen. Stat. § 6-21.5. A
losing party's pleadings reflect "a complete absence
of a justiciable issue" when it "conclusively
appear[s] that such issues are absent even giving the losing
party's pleadings the indulgent treatment which they
receive on motions for summary judgment or to dismiss."
Sprouse v. N. River Ins. Co., 344 S.E.2d 555, 565 (
N.C. Ct. App. 1986). Additionally, the plaintiff must have
been reasonably aware that, at the time the complaint was
filed, it contained no justiciable issue, or the plaintiff
must have continued pursuing the matter once she discovered
that the complaint contained no justiciable issues.
Brooks v. Giesey, 432 S.E.2d 339, 342-43 ( N.C.
award of attorneys' fees is merited under N.C. Gen. Stat.
§ 6-21.5. Plaintiffs complaint did not reflect a
"complete absence of a justiciable issue," because,
as referenced above, had the claims been timely asserted it
is possible that they would have survived dismissal.
Plaintiff had made a prima facie showing as to at
least some of her civil rights claims. Accordingly, in its
discretion, the Court finds that no award ...