The opinion of the court was delivered by: McLaughlin, J.
This case arises out of the arrest of plaintiffs Peter Pollock and Peter Mekosh at the residence of Peter Pollock's wife, Marjorie Pollock, with whom he was having a contentious divorce. The plaintiffs bring a civil rights action against Marjorie Pollock, Hilltown Township Municipality, Hilltown Township Police Department, and Officer Louis Bell. They allege that the defendants conspired to deprive them of a variety of their constitutional rights in violation of 42 U.S.C. § 1983. They also bring three state law claims.
Marjorie Pollock moved to dismiss the § 1983 claims against her on the ground that she was not a state actor. The Court denied the motion, finding that the plaintiffs had pled more than merely conclusory allegations of concerted action between her and Officer Louis Bell. Central to the Court's conclusion were the allegations in the complaint that Marjorie Pollock was having an affair with Officer Bell and that they conspired together to have the plaintiffs arrested and to bring criminal proceedings against them.
The allegation of an affair turned out to be incorrect. Not only had Marjorie Pollock and Officer Bell not had an affair, they had never met before the day of the incident that was the subject of the lawsuit. The plaintiffs and the defendants agreed to the dismissal of the case with prejudice, with the understanding that the defendants could file a motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988. The defendants did so and the Court here decides that motion.
I. Legal Standard for an Award of Attorneys' Fees
Section 1988 of Title 42 provides, in pertinent part, that "[i]n any action or proceeding to enforce a provision of [§ 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." § 1988(b). A court can award attorneys' fees to a prevailing defendant under § 1988 only "'upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.'" Commw. v. Flaherty, 40 F.3d 57, 60-61 (3d Cir. 1994) (quoting Christiansburg Garment Co. v. EEOC, 432 U.S. 412, 420 (1972)). A finding of bad faith, although not required for an award of attorneys' fees, weighs strongly in favor of such an award. Christiansburg, 434 U.S. at 422; see also Barnes Foundation v. Township of Upper Merion, 242 F.3d 151, 165-66 (3d Cir. 2001).
To decide the motion, the Court must determine if the plaintiffs or their counsel had an adequate basis to allege that Marjorie Pollock and Officer Bell were having an affair, and if they did not, whether that allegation was sufficiently "groundless" or "without foundation" to allow an award of fees. Although not required for an award of fees, the Court must also consider whether the plaintiffs or the plaintiffs' counsel acted in "bad faith," by knowingly or recklessly making a false allegation of the affair.
The Court answers these questions affirmatively as to the plaintiffs, finding that their allegation of an affair was groundless and that it was made in bad faith. Although the Court has concerns about the way counsel for the plaintiffs handled this litigation, the Court finds the conduct of counsel was not sanctionable.*fn1
II. Discovery Concerning The Plaintiffs' Allegation of an Affair Between Marjorie Pollock and Officer Louis Bell
The plaintiffs' complaint alleges that "[u]pon information and belief, Defendant [Marjorie] Pollock was having an extramarital affair with a police officer in the Hilltown police department" and that "[u]pon information and belief, said police officer was Defendant [Louis] Bell." Compl. ¶¶ 13-14.
The plaintiffs have said that they relied on the following facts as the basis for their allegation of an affair between Marjorie Pollock and Officer Louis Bell: (1) that the plaintiffs had been told by Bonnie Swann, an acquaintance of theirs who knew Marjorie Pollock, that Swann had been told by Marjorie Pollock that Pollock was having an affair with Officer Bell; (2) that sometime before the filing of the complaint, Marjorie Pollock had told her husband, Peter Pollock, on three separate occasions, that she met a police officer who asked her out to lunch; (3) that during the incident that resulted in the plaintiffs' arrest, Officer Bell referred to Marjorie Pollock as "Marjorie;" and (4) that sometime during the incident Officer Bell appeared to be having an intimate conversation with Marjorie Pollock.
Of these supporting facts, the most important is Bonnie Swann's statement to the plaintiffs that Marjorie Pollock had told her of the affair. Absent her statement, the other supporting facts taken together would not have given a reasonable basis to allege the existence of an extramarital affair between Marjorie Pollock and Officer Bell.
Counsel for the plaintiffs did not attempt to verify Bonnie Swan's alleged statement to the plaintiffs until after the complaint was filed. Defendants Marjorie Pollock and Officer Bell denied the existence of any affair in their answer, and the parties agreed to a short discovery schedule. All parties indicated a desire to depose Bonnie Swann.
A. Attempts to Depose Bonnie Swann
Counsel for both the plaintiffs and the defendants spoke to Swann separately in attempting to arrange her deposition. Counsel for the plaintiffs spoke to Swann in February 2008. In that conversation, the plaintiff's counsel says Swann confirmed that Marjorie Pollock had told Swann that Marjorie Pollock was having an affair with Officer Bell and said that she would be willing to sign an affidavit to that effect.*fn2
Counsel for Marjorie Pollock interviewed Swann two times in March 2008. Defense counsel says that in those conversations Swann denied making the statements that the plaintiffs' attribute to her.*fn3
Counsel for the defendants subpoenaed Swann for deposition on April 3, 2008, but she refused to appear, either in person or by telephone, saying she was traveling out of state. On April 10, 2008, the plaintiffs' counsel wrote the Court, stating that plaintiff Peter Pollock had received a voicemail message from Swann complaining of intimidation. The Court held a conference with counsel, at which a recording of Swann's message was played. Although not clearly audible, in the message, Swann was complaining of what she perceived to be intimidation by plaintiff Peter Pollock's brother Seth. The Court expressed grave concern at any suggestion that a witness was being intimidated or otherwise induced to say something untrue, and warned that the truth of Swann's seemingly directly contradictory statements to defendants' and plaintiffs' counsels would be resolved by her deposition.
Plaintiffs' counsel stated that he would subpoena Swann for deposition. He did so and her deposition was scheduled for April 28, 2009. Swann contacted the plaintiffs' counsel on the day of her deposition to say she could not appear and to reschedule for the following day. On April 29, 2009, Swann again called plaintiff's counsel to cancel her deposition. That evening, a lawyer from the plaintiff's counsel's office went to Swann's home, where she signed an affidavit prepared by the plaintiff's counsel.
B. Bonnie Swann's Affidavit
The affidavit of Bonnie Swann, dated April 29, 2009, and provided to defendants' counsel the next day, states:
1. My name is Bonnie Swann, and I am an adult individual.
2. I know Marjorie Poll[o]ck and Peter Poll[o]ck.
3. I am in the business of providing nursing-related services.
4. While at one of my client's sites, I worked with Marjorie Poll[o]ck on several occasions.
5. A few years ago, during the course of several conversations, Marjorie Poll[o]ck explained that she [was dating] Officer Louis Bell.
6. I understood from my conversations with Marjorie Poll[o]ck that she was having a romantic and/or sexual relationship with Officer Louis Bell of the Hilltown Township Police Department.
Paragraph five of the affidavit signed by Swann contains a handwritten change to the version prepared by the plaintiff's counsel. The plaintiff's counsel's original, type-written version of paragraph five stated that " . . . Marjorie Pollock explained that she was having an affair with Officer Louis Bell." Swann crossed out "having an affair with" and substituted "dating." Neither the original nor the signed affidavit said that Bonnie Swann had told the plaintiffs about her conversations with Marjorie Pollock before the filing of the complaint.
C. Bonnie Swann's Deposition
At the request of the defendants' counsel the Court held a telephone status conference with the parties on May 2, 2009, to discuss Swann's failure to appear at deposition. The Court noted that, given the circumstances of its preparation, Swann's affidavit would likely not be useable for any purpose in these proceedings and that Swann would have to be deposed, as had been previously discussed. Counsel for the defendants indicated that they would file a motion to enforce their subpoena of Swann. The Court ordered all parties and their counsel to have no further substantive conversations with Swann before her deposition and said it would await the defendants' motion. The defendants' motion to enforce their subpoena was filed May 2, 2009, granted May 6, 2009, and Swann appeared for deposition on May 15, 2009.
At her deposition, Bonnie Swann denied that Marjorie Pollock ever told her that she (Marjorie Pollock) was ...