The opinion of the court was delivered by: Juan R. Sánchez, J.
The City of Bethlehem, the prevailing defendant in this action, moves for an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988. Because this Court cannot conclude Plaintiff Justin Smith's claims were "frivolous, unreasonable, or without foundation," as required to justify an award of attorneys' fees for a prevailing defendant under § 1988, the motion will be denied.
This case arises out of the City of Bethlehem's denial of Smith's request for a zoning exception to permit him to operate a coffee shop/café at a property he owns in Bethlehem, Pennsylvania.*fn1 On December 4, 2006, Smith filed a Complaint against the City of Bethlehem; the Zoning Hearing Board of the City of Bethlehem; the members of the Zoning Hearing Board; Darlene Heller, the Director of the Bethlehem Planning Bureau; Tony Hanna, the Director of Community and Economic Development for the City of Bethlehem; and John Lezoche, the City's Zoning Officer. The Complaint alleged Lezoche, who owned property on the same street as Smith's property, opposed Smith's plan to open a coffee shop and unlawfully conspired with the other Defendants to ensure Smith's application was denied.*fn2 Smith asserted claims against all Defendants pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, and asserted a claim for civil conspiracy under Pennsylvania law. In support of his § 1983 claim, Smith alleged the denial of his application for a zoning permit violated his rights to substantive and procedural due process and equal protection. In support of his § 1985 claim, Smith alleged the Defendants "conspired to impede and obstruct [his] zoning application with the intent to deny [him] his right to equal protection of the laws, including his right to due process, for the purpose of preventing [him] from exercising his property rights." Compl. ¶ 125. Smith's § 1986 claim alleged Defendants failed to prevent the denial of his zoning application despite knowing such denial was improper and possessing the power to prevent or aid in preventing the denial. Finally, Smith asserted a claim for civil conspiracy under Pennsylvania law alleging Defendants unlawfully conspired with the intent to deprive him of his rights and inflict injury upon him.
On March 27, 2007, Defendants filed a partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), seeking dismissal of Smith's claims against the members of the Zoning Hearing Board in their individual capacities on the basis of judicial immunity, and seeking dismissal of Smith's § 1985, § 1986, and civil conspiracy claims in their entirety. Defendants argued the § 1985 claim should be dismissed based on the absence of any allegation of a racial or class-based motivation for the alleged conspiracy to deny Smith's zoning application and the § 1986 claim should be dismissed because it depended on the existence of a valid § 1985 claim.*fn3 Smith opposed the motion.
On May 9, 2007, the Court issued an Order denying the partial motion to dismiss without prejudice and granting Smith 20 days to file an amended complaint addressing the "alleged deficiencies" identified by Defendants. Smith did not file an amended complaint. Defendants then renewed their partial motion to dismiss on the same grounds previously asserted, and Smith again opposed the motion, noting he had reviewed the Complaint and concluded it was not deficient. By Order of January 11, 2008, the Court granted the motion as to Smith's § 1985 and § 1986 claims because the Complaint did not allege a conspiracy motivated by racial or other class-based animus. The Court denied the balance of the motion, finding additional discovery was necessary on the claims against the Zoning Hearing Board members in their individual capacities and finding the Complaint stated a claim for civil conspiracy.
On August 13, 2008, after discovery had concluded, Defendants filed a motion for summary judgment on Smith's § 1983 and civil conspiracy claims, which Smith opposed. On March 9, 2009, the Court granted the motion. The Court concluded there was no evidence of "conscience shocking" conduct on the part of Defendants, as required for a substantive due process claim.*fn4 Regarding Smith's procedural due process claim, the Court concluded the undisputed evidence reflected Smith had received a full and fair hearing before the Zoning Hearing Board and held Smith had waived his right to challenge the Board's decision on procedural due process grounds by failing to appeal the Board's decision to the Court of Common Pleas for Northampton County. The Court also concluded summary judgment was appropriate on Smith's equal protection claim because Smith failed to identify other similarly situated property owners who were treated differently, as required for the "class of one" equal protection claim Smith alleged. Finally, the Court granted summary judgment as to Smith's civil conspiracy claim, finding because Defendants' actions did not constitute a violation of due process or equal protection, Smith could not prove Defendants committed an unlawful act or committed a lawful act for an unlawful purpose.
Following entry of judgment in Defendants' favor, the City of Bethlehem filed a motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988.*fn5 Smith thereafter filed a notice of appeal. On April 7, 2009, the Court denied Bethlehem's motion for attorneys' fees with leave to renew after resolution of Smith's appeal. On November 23, 2009, the Third Circuit dismissed the appeal at Smith's request pursuant to Federal Rule of Appellate Procedure 42(b).*fn6 Bethlehem filed a renewed motion for attorneys' fees the following day, which Smith opposed.
On August 5, 2010, this case was reassigned to this Court's docket.
Section 1988 allows a court to award attorneys' fees to the "prevailing party" in an action pursuant to 42 U.S.C. §§ 1983, 1985, or 1986. 42 U.S.C. § 1988(b). While the statute permits the award of attorneys' fees to both prevailing plaintiffs and defendants, "the standard for awarding attorney's fees to prevailing defendants is more stringent than that for awarding fees to prevailing plaintiffs." Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 157-58 (3d Cir. 2001); see also EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir. 1997) (noting attorneys' fees for a prevailing defendant "'are not routine, but are to be only sparingly awarded'" (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 503 (3d Cir. 1991))). In contrast to prevailing plaintiffs, who are generally entitled to attorneys' fees absent special circumstances, a prevailing defendant may recover such fees only if the court finds the plaintiff's claim "was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416-17, 421-22 (1978) (interpreting the attorneys' fee provision of Title VII); see also Barnes Found., 242 F.3d at 158 & n.6 (noting the Christiansburg standard for awarding attorneys' fees to a prevailing defendant applies to claims for attorneys' fees pursuant to § 1988). A court need not find the plaintiff brought the action in bad faith to award attorneys' fees to the prevailing defendant, but the court must "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." Christiansburg, 434 U.S. at 421-22.
The Third Circuit has identified a number of factors relevant to a court's determination whether an award of attorneys' fees to a prevailing defendant is appropriate, including: (1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; (3) whether the case was dismissed prior to trial; (4) whether the case involved an issue of first impression requiring judicial resolution; (5) whether the controversy was based on a real threat of injury to the plaintiff; and (6) whether the trial court found the suit frivolous. Barnes Found., 242 F.3d at 158; see also L.B. Foster Co., 123 F.3d at 751. "These considerations, however, are merely guidelines, not strict rules . . . ." Barnes Found., 242 F.3d at 158. The ultimate question is "whether the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful." Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985) (internal quotation marks and citation omitted).
Bethlehem argues attorneys' fees are warranted for Smith's § 1985 and § 1986 claims because Smith failed to allege any facts to suggest a racial or class-based motivation for the alleged conspiracy to deny his application for a special exception, even after Defendants identified this deficiency and the Court granted Smith leave to amend his Complaint to correct it. Bethlehem argues attorneys' fees are also warranted for Smith's § 1983 claims based on the lack of evidentiary support for those claims at the summary judgment stage. Smith does not address his § 1985 and § 1986 claims, but argues attorneys' fees for his § 1983 claims are not warranted because he had a reasonable basis to bring those claims based on Lezoche's conduct.
As the Court concluded when partially granting Defendants' motion to dismiss, to state a claim under the second part of § 1985(2), a complaint must allege a class-based discriminatory animus.*fn7 Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). To state a claim under § 1986, a complaint must allege a violation of § 1985. See id. at 841 (upholding the dismissal of plaintiffs' § 1986 claims based on plaintiffs' failure to state a claim under § 1985(2)). Because Smith's Complaint failed to allege the required animus on the part of Defendants, and because Smith declined ...