The opinion of the court was delivered by: NEALON
Plaintiff filed this action dated August 1, 1984 pursuant to 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 1985(3), requesting injunctive relief and damages for alleged violations of the First and Fourteenth Amendments, as well as a state claim of intentional infliction of emotional distress. By Order dated August 13, 1985, 628 F. Supp. 283, this court granted judgment for defendants on all of plaintiff's claims except the one claim of invasion of privacy and denied summary judgment on plaintiff's state law claim for emotional distress. After supplemental briefs were filed, by Order dated December 9, 1985, the court granted defendants' Motion for Summary Judgment on the federal claim and dismissed the state law claim thereby closing the case. Presently before the court is defendants' Motion for Attorney's Fees pursuant to 42 U.S.C. § 1988 and Fed.R.Civ.P. 11 in which defendants contend that many of plaintiff's claims were frivolous. For the reasons set forth below, the motion will be denied.
Specifically, defendants maintain that five of plaintiff's seven claims were frivolous, viz., the prior restraint claim, due process and equal protection claims and sections 1983 and 1985 claims. In response, plaintiff argues that his claims had sufficient factual basis so as to avoid a finding of frivolity.
In Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978), the court held that a district court may in its discretion award a prevailing defendant attorney's fees upon a finding that plaintiff's action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith. The Supreme Court also gave the following cautionary instructions:
In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most outright claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial, the law may change or clarify in the midst of litigation. Even when the law on the facts appears unquestionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
By its terms, section 1988 places the decision of the award in the court's discretion. In other words, while a prevailing defendant may receive an award of attorney's fees only upon a finding that plaintiff's claims were frivolous, unreasonable and without foundation, such a finding does not automatically result in an award of fees. To grant the award is still within the discretion of the court.
Rule 11 of the Federal Rules of Civil Procedure requires a different analysis. Rule 11, as amended, explicitly provides for sanctions to be imposed upon an attorney who violates the certification that good grounds exist for the pleading and that the pleading is not submitted for delay purposes.
The standard for testing conduct under amended Rule 11 is reasonableness under the circumstances, a more stringent standard than the original good-faith formula. . . . Thus, subjective bad faith is no longer a predicate to a Rule 11 ...