The opinion of the court was delivered by: Judge Kane
Pending before the Court is Defendants' motion for attorneys' fees and costs brought pursuant to 42 U.S.C. § 1988. Plaintiff has filed a brief in opposition to the motion. For the reasons that briefly follow, Defendants' motion will be denied.
Plaintiff commenced the above-captioned action against the Littlestown Area School District ("LASD") and the LASD Superintendent, Dr. Robert McConaghy, alleging that the Defendants employed an unwritten chain-of-command policy that prohibited LASD employees from speaking to school board directors about district business without obtaining clearance from Dr. McConaghy. Plaintiff alleged that this policy violated her rights to free speech under the First Amendment to the United States Constitution. When Plaintiff commenced this action, she was an elected member of the LASD board.
On October 28, 2003, the Court denied Plaintiff's motion for a temporary restraining order for failure of Plaintiff to establish likelihood of success on the merits. The Court held an evidentiary hearing on Plaintiff's motion for a preliminary injunction on November 26, 2003. Based on the testimony and documentary evidence presented at the hearing, and upon consideration of the briefs filed by Plaintiff and Defendants, the Court found that Plaintiff had failed to demonstrate that she was likely to succeed on her claims, and denied Plaintiff's request for preliminary injunctive relief. Notably, while Plaintiff's motion for a preliminary injunction was pending, Plaintiff's term on the LASD school board expired and Plaintiff was not reelected. As a result, Plaintiff amended her original complaint to assert that the LASD's alleged chain-of-command policy violated her rights as a taxpayer living within the LASD. Immediately before trial, Plaintiff abandoned her claim that her rights as a school board member were violated by the alleged policy and filed a stipulation to that effect. (Doc. No. 93.)
On October 18, 2005, the Court held a non-jury trial. In addition to her own testimony, Plaintiff called three witnesses to testify at trial: (1) Dr. Robert McConaghy, Superintendent of the LASD; (2) Brian Shirk, a former employee with the LASD; and (3) Eileen Bentzen, an LASD employee in charge of food services. Additionally, Plaintiff offered into evidence correspondence between Plaintiff and various members of the LASD school board that was exchanged during Plaintiff's tenure as a board member. Plaintiff also offered two sets of correspondence between herself and Mr. Shirk and Ms. Bentzen, both of which were exchanged while Plaintiff was a member of the school board. Additionally, Plaintiff offered into evidence a very brief excerpt of the testimony of Dr. Robert McConaghy at the hearing on Plaintiff's motion for a preliminary injunction. At the conclusion of the evidence, Defendants' moved for judgment as a matter of law, arguing that the evidence of record was legally insufficient to allow Plaintiff to prevail on her claims. In denying Plaintiff's motion for a preliminary injunction, the Court found that Plaintiff could prevail on her First Amendment claim only by demonstrating that an official LASD policy had the effect of chilling the speech of LASD employees who were willing speak with Plaintiff regarding matters of public concern.*fn1 Defendants argued that judgment as a matter of law was proper because the evidence presented at trial failed even to establish the existence of an unwritten chain-of-command policy employed by the LASD. The Court took the matter under advisement and on November 8, 2005, the Court entered a memorandum and order granting Defendants' motion. (Doc. No. 96.) The Court entered Judgment in favor of Defendants on November 8, 2005, and Plaintiff did not appeal. (Doc. No. 97.)
On November 22, 2005, Defendants filed the motion pending before the Court seeking more than $17,000 in attorneys' fees. (Doc. No. 98.) Defendants supplemented this motion on December 7, 2005 (Doc. No. 99) and filed a brief in support of their motion on December 22, 2005 (Doc. No. 101). Following an agreed-upon extension of time, Plaintiff filed a brief in opposition to Defendants' motion on January 19, 2006. (Doc. No. 105.)
Pursuant to 42 U.S.C. § 1988, in connection with a lawsuit brought under 42 U.S.C. § 1983, "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 . . . ." 42 U.S.C. § 1988. Although the statute itself does not draw a distinction between prevailing defendants and prevailing plaintiffs, the federal courts have developed alternative burdens for recovery of attorneys' fees under § 1988. Accordingly, although a defendant may be a "prevailing party" for purposes of the statute, the standard for awarding fees "to prevailing defendants is more stringent than that for awarding fees to prevailing plaintiffs." Barnes Foundation v. Twp. of Lower Merion, 242 F.3d 151, 157-58 (3d Cir. 2001). "[A] prevailing defendant is entitled to attorney's fees only 'upon a finding that the plaintiff's action was frivolous, unreasonable or without foundation . . . ." Id. at 158 (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). However, a prevailing defendant need not show that the plaintiff brought the action in "subjective bad faith." Barnes Foundation, 242 F.3d at 158.
In considering whether a prevailing defendant is entitled to an award of attorney's fees under 42 U.S.C. § 1988, a district court should consider to following factors: "(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the claims prior to trial or had a full-blown trial on the merits." EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir. 1997); see also Barnes Foundation, 242 F.3d at 158 (considering as additional factors whether the issues raised in the litigation were matters of first impression and whether there existed a real threat of injury to the plaintiff). The Third Circuit has noted that these factors should be considered "guideposts, not hard and fast rules," and that "[d]eterminations regarding frivolity are to be made on a case-by-case basis."
L.B. Foster Co., 123 F.3d at 751 (quotation omitted). The United States Supreme Court has instructed that when considering these various factors district courts should exercise caution before readily awarding attorneys' fees to prevailing defendants:
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.
Christiansburg Garment Co., 434 U.S. ...