Free Motion for Attorney Fees - District Court of Arizona - Arizona

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

J. Steven Sparks (State Bar No. 015561) SANDERS & PARKS, P.C. 3030 North Third Street, Suite 1300 Phoenix, Arizona 85012-3099 Telephone: (602) 532-5769 Fax: (602) 230-5051 [email protected] Attorneys for Defendants GLENDALE UNION HIGH SCHOOL DISTRICT NO. 205, TANYA SOTO, STEVE SOTO, ANNIE PRESTON, KEITH PRESTON, CLAY KLAVITTER and JILL KLAVITTER UNITED STATED DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

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JOE RAMIREZ and ANA RAMIREZ, Individually and as Parents and Legal Guardians of JOSE RAMIREZ, Plaintiffs,

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vs. GLENDALE UNION HIGH SCHOOL DISTRICT NO. 205; JOHN DOE AND JANE DOE I-X; ABC CORPORATIONS I-X; and XYZ PARTNERSHIPS I-X, Defendants. __________________________________ JOE RAMIREZ and ANA RAMIREZ, Individually and as Parents and Legal Guardians of JOSE RAMIREZ, Plaintiffs, vs. GLENDALE UNION HIGH SCHOOL DISTRICT NO. 205; TANYA SOTO and
Case 2:03-cv-00060-ROS Document 134

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CASE NO.: CIV03-0060 PHXROS

DEFENDANTS' APPLICATION FOR ATTORNEYS' FEES PURSUANT TO 42 U.S.C. SECTION 1988

Filed 09/27/2006

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

) ) ) ) ) ) ) Defendants. ) ___________________________________ )

JOHN DOE SOTO; ANNIE PRESTON and JOHN DOE PRESTON; CLAY KLAVITTER and JANE DOE KLAVITTER; JOHN DOE AND JANE DOE I-X; ABC CORPORATIONS I-X; and XYZ PARTNERSHIPS I-X,

Pursuant to 42 U.S.C. § 1988, Defendants respectfully request this Court to award them attorneys' fees incurred in defending this matter. This Motion is supported by the attached Memorandum of Points and Authorities, the attached Affidavit of J. Steven Sparks, and the Court's entire file in this matter, which are incorporated by this reference. MEMORANDUM OF POINTS AND AUTHORITIES 42 U.S.C. § 1988 provides, in pertinent part: (b) Attorney's fees

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In any action or proceeding to enforce a provision of sections . . . 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . . Plaintiffs' Complaint alleged causes of action for violations of 42 U.S.C. § 1983 and state law negligence claims, including negligent hiring and negligent supervision. On March 16, 2005, Defendants moved for summary judgment on both of the remaining

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claims.1 Plaintiffs responded on April 25, 2005 and Defendants replied on May 17,

Plaintiffs' original Complaint also included loss of consortium claims by the parents of Jose Ramirez and Title IX claims. The parents' loss of consortium claims were dismissed as time-barred under the applicable statute of limitations. The Title IX claims were dismissed on February 17, 2004 pursuant to stipulation by the parties. Case 2:03-cv-00060-ROS Document 134 - Filed 09/27/2006 Page 2 of 7 -2

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2005. Oral argument on the Motion for Summary Judgment was held on April 27, 2006. On September 20, 2006, this Court granted summary judgment in Defendants' favor and ordered that the Plaintiffs' case be dismissed in its entirety. Defendants now ask this Court to exercise its discretion and award attorneys' fees in favor of the Defendants and against Plaintiffs. Defendants recognize that an award of attorney's fees is not automatic under 42 U.S.C. § 1988, but is within the Court's discretion if it finds that the "claim was

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 54 L. Ed. 2d 163, 101 S. Ct. 173 (1980); see also Patton v. The County of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) (a prevailing civil rights defendant should be awarded attorney's fees "where the action brought is found to be unreasonable, frivolous, meritless or vexatious") quoting Christiansburg Garment Co., supra at 421. In this case, Plaintiffs' claims were clearly frivolous and without merit from the very beginning. This Court is also empowered to award fees incurred by the Defendants in successfully defending meritless state law claims where such claims arose out of the same course of conduct as the federal claims. Munson v. Milwaukee Board of School Directors, 969 F.2d 266 (7th Cir. 1992). Here, the state law claims (negligence, etc.) and the § 1983 claims all arose out of the same set of facts ­ i.e., the alleged failure of the Defendant school district and its employees to supervise and monitor its special education students during physical education class. Inasmuch as the federal claims
Case 2:03-cv-00060-ROS Document 134 -3 Filed 09/27/2006 Page 3 of 7

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were unmeritorious, so too were the state law claims. Defendants' Motion for Summary Judgment raised two distinct issues: (1) Plaintiffs' state law negligence claims fail as a matter of law because Plaintiffs have no expert testimony regarding the required standard of care with regard to supervision of special needs students or training for special needs teachers and staff; and (2) Plaintiffs' §1983 claims fail because Plaintiffs never identified any constitutional or statutory right that was allegedly violated by the Defendants and because Plaintiffs never identified

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

any official policy promulgated by the District that deprived them of their constitutional rights. Both of Defendants' arguments were ­ at their core ­ premised upon Plaintiffs' clear inability to establish a critical element of their claims (i.e., something Plaintiffs and their counsel knew or should have known from the inception of the case).

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In their Response to the Motion for Summary Judgment, Plaintiffs acknowledged that they had no evidence of the applicable standard of care and, instead, argued that expert opinion is not necessary. In rejecting Plaintiffs' argument, this Court correctly applied the settled law of Arizona, which states that expert testimony is always required to establish the standard of care for the supervision of special needs students and the training of special education teachers and staff. To proceed forward with no evidence of the applicable standard of care ­ in the face of well-established case law that requires such evidence ­ clearly demonstrates that Plaintiffs were acting in a capricious and frivolous manner. Absent some expert testimony regarding the standard of care,

Plaintiffs' claim had no merit as a matter of law. Yet, Plaintiffs continued to litigate the case for several years and forced Defendants to incur substantial attorneys' fees and
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costs in defending those baseless claims. Similarly, the inability of Plaintiffs and their counsel to identify the constitutional basis for their Section 1983 claim after years of litigation is shocking to say the least. Pursuant to Rule 11 of the Federal Rules of Civil Procedure, Plaintiffs and their counsel were required to have a good faith basis for each of the claims set forth in their Complaint. As of April 27, 2006, when he was questioned repeatedly by the Court, Plaintiffs' counsel was still not able to identify any constitutional or statutory violation

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

allegedly committed by the Defendants. This failure on the part of Plaintiffs is clear and unambiguous evidence that their Section 1983 claim was frivolous from the very beginning to the very end. It had no merit, yet Plaintiffs and their counsel plodded forward and dragged Defendants along through years of litigation and forced

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Defendants to incur substantial costs and fees. Finally, if the issues raised above are not enough to show the frivolous nature of Plaintiffs' claims, the Court should be reminded that Plaintiffs were never able to identify an official policy promulgated by the District that infringed upon their rights. As the Court correctly noted in its Order dated September 20, 2006, an "official policy" is an essential element of a Section 1983 claim. Despite having presumed knowledge of the clearly established law on this point, Plaintiffs filed suit without any basis whatsoever and then maintained the lawsuit for years and years without ever disclosing any "official policy" on the part of the District. This, again, evidences the frivolous and meritless nature of Plaintiffs' claims.

Case 2:03-cv-00060-ROS

Document 134 -5

Filed 09/27/2006

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Pursuant to the cases cited above and for each of the above-described reasons, Defendants Glendale Union High School District, Tanya Soto, Clay Klavitter and Annie Preston, respectfully request an award of their reasonable attorneys' fees under 42 U.S.C. §1988(b) in the amount of $107,482.00. Although Defendants recognize that the amount of fees being sought is substantial, those fees were reasonable and necessary in order to defend against Plaintiffs' Complaint. This case spanned more than five (5) years and involved a large number of witnesses (with varying degrees of mental

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

disability and language barriers), as well as a significant amount of discovery and motion work. This application for attorneys' fees is supported by the affidavit of J. Steven Sparks, a copy of which is attached as Exhibit "1". RESPECTFULLY SUBMITTED this 27th day of September 2006 SANDERS & PARKS, P.C.

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By: s/J. Steven Sparks J. Steven Sparks 3030 N. Third Street, #1300 Phoenix, Arizona 85012 Attorney for Defendants

Case 2:03-cv-00060-ROS

Document 134 -6

Filed 09/27/2006

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

I hereby certify that on September 27, 2006, I electronically transmitted the foregoing document to the Clerk's office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following EM/ECF Registrants: [email protected] Attorneys for Plaintiffs To be hand-delivered as a courtesy copy on September 27, 2006, to the Honorable Roslyn O. Silver. s/ J. Steven Sparks_____________

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Case 2:03-cv-00060-ROS

Document 134 -7

Filed 09/27/2006

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