IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
April 11, 2008
RAYMOND E. ARNOLD, JR. AND SANDRA L. ARNOLD, PLAINTIFFS
RED LION BOROUGH, ET AL., DEFENDANTS
The opinion of the court was delivered by: Christopher C. Conner United States District Judge
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 § 1988, but that the action was based upon a sufficiently real threat of injury to plaintiffs, see Barnes Found., 242 F.3d at 158, and that plaintiffs asserted the action not for the purpose of harassing defendants, see Solomen, 223 F. Supp. 2d at 684, 686-87, but for the purpose of recovering an amount of pension benefits to which plaintiff Raymond Arnold is likely entitled (see Doc. 37 at 2, 5-6), it is hereby ORDERED that the motions for attorney's fees (Docs. 38, 39) are DENIED.