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Arnold v. Borough

April 11, 2008

RAYMOND E. ARNOLD, JR. AND SANDRA L. ARNOLD, PLAINTIFFS
v.
RED LION BOROUGH, ET AL., DEFENDANTS



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 11th day of April, 2008, upon consideration of defendants' motions (Docs. 38, 39) for attorney's fees pursuant to 42 U.S.C. § 1988 (stating that "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee"), and it appearing that a prevailing defendant is to be awarded attorney's fees only "upon a finding that the plaintiff's action was frivolous, unreasonable or without foundation," Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 157-58 (3d Cir. 2001) (quoting Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421 (1978)), that attorney's fees for prevailing defendants "are not routine, but are to be only sparingly awarded," Equal Employment Opportunity Comm'n v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir. 1997) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 503 (3d Cir. 1991)), that "[d]eterminations regarding frivolity are to be made on a case-by-case basis," Id., and that "[t]he standard for finding frivolity or a lack of foundation . . . must require something beyond that which is required for granting either a motion to dismiss or a motion for summary judgment," Solomen v. Redwood Advisory Co., 223 F. Supp. 2d 681, 684 (E.D. Pa. 2002), and the court finding that it possesses jurisdiction to adjudicate defendants' motions for attorneys fees,*fn1 and that defendants are the prevailing parties in the above-captioned action for purposes of ยง 1988, but that the action was based upon a sufficiently real threat of injury to plaintiffs, ...


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