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James Chizmar and Marianne Chizmar v. Borough of Trafford

May 15, 2012


The opinion of the court was delivered by: McVerry, J.


Presently before the Court is DEFENDANT CRAIG ALEXANDER'S MOTION FOR ATTORNEY'S FEES AND NON-TAXABLE COSTS (Doc. No. 73), and MOTION FOR ATTORNEY'S FEES AND NON-TAXABLE COSTS OF DEFENDANTS BOROUGH OF TRAFFORD, FRANK BRUNO AND BRIAN LINDBLOOM (Doc. No. 74). Plaintiffs, James Chizmar and Marianne Chizmar, have filed a brief in opposition (Doc. No. 82). The motions are ripe for disposition.


The incidents which gave rise to this lawsuit began in February 2007, when the Borough of Trafford approved a residential subdivision and land development plan for two vacant parcels of land, one parcel to be developed as "Coventry Court" and one parcel to be developed as "Bradford Square." The "Coventry Court" development site is a large tract of land, a portion of which is located directly behind and immediately adjacent to Plaintiffs' property. Construction of a road and residential housing within the "Coventry Court" parcel commenced in 2007, and Plaintiffs first became aware of the development at the end of April/beginning of May in 2007. From that date, Plaintiffs' had various interactions with Defendants, law enforcement officials, the parcel's developer, and several other persons that formed the factual background upon which Plaintiffs brought their claims.

On February 13, 2009, Plaintiffs filed a five count complaint, alleging multiple counts of intentional retaliatory conduct by Defendants Borough of Trafford, Frank Bruno, Brian Lindbloom and Craig Alexander (collectively "Defendants") in response to Plaintiffs' expression of their concerns and petitioning of the Borough of Trafford regarding the Bradford Square and Coventry Court developments. Three counts of the complaint were brought pursuant to 42 U.S.C. § 1983, alleging violations of rights guaranteed by the United States Constitution. The remaining two counts of the complaint were brought pursuant to Pennsylvania law under supplemental jurisdiction.

Plaintiffs' claims brought pursuant to 42 U.S.C. § 1983 named as Defendants the Borough of Trafford and Defendants Lindbloom, Bruno and Alexander, in both their official and personal capacities. Plaintiffs' claims alleged that Defendants attempted to deter Plaintiffs from exercising their First Amendment Rights by: a) directing that a hazardous diesel tank and offensive portable toilet be placed at the edge of their property; b) issuing a meritless citation for violation of a Borough Ordinance and fining Plaintiffs $8,400.00, without probable cause; c) filing an Equity Action without factual support or probable cause and pursuing said Equity Action for months after it was proven to be meritless; d) directing Trafford police to investigate Plaintiffs for claims they had removed engineering stakes from the Coventry Court development; and e) citing Plaintiff James Chizmar for disorderly conduct without probable cause. Plaintiffs' claims brought pursuant to Pennsylvania law under supplemental jurisdiction alleged that Defendants conspired to: a) engage in the wrongful use of civil proceedings regarding the Equity Action; and b) engage in malicious prosecution regarding the citation for disorderly conduct issued to Plaintiff James Chizmar.

After extensive discovery proceedings, Defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), which Plaintiffs opposed. After careful consideration of the motions, the filings in support and opposition thereto, memoranda of the parties, relevant case law, and the record as a whole, the Court granted Defendants' motions for summary judgment. The summary judgment rulings of the Court were affirmed by the Court of Appeals for the Third Circuit. Defendants are now seeking to recover attorney fees and costs pursuant to 42 U.S.C. § 1988.


Pursuant to 42 U.S.C. § 1988, the Court has discretion to award reasonable attorney fees and costs to the prevailing party in a civil rights case.*fn1 Traditionally, § 1988 awards a prevailing plaintiff attorney fees because the plaintiff assumes the role of "a 'private attorney general,' vindicating a policy that Congress considered of the highest priority." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Accordingly, a prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Id. at 416-17, 98 S.Ct. at 698. The award of attorney fees is not limited solely to prevailing plaintiffs, however. As the Supreme Court further noted in the Christiansburg decision, the "prevailing party" can be either the plaintiff or the defendant, and held § 1988 authorizes awarding reasonable attorney fees and costs to a prevailing defendant in order to protect such defendants from burdensome litigation which has no legal or factual basis. Id. at 419-21, 98 S.Ct. at 699-700. However, for a prevailing defendant to be awarded attorney fees, § 1988 requires a District Court to find "that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id. at 421, 98 S.Ct. at 700.

The Supreme Court explained the reasoning behind the heightened standard applied to prevailing defendants in Roadway Exp., Inc. v. Piper, 447 U.S. 752, 762, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), and indicated the "distinction advances the congressional purpose to encourage suits by victims of discrimination while deterring frivolous litigation." Given the purpose of the award of attorney fees to defendant is to deter frivolous litigation, the Supreme Court in Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 66 L.Ed.2d 648 (1978) noted "[t]he fact that a plaintiff may ultimately lose his case is not in itself sufficient justification for the assessment of fees." Furthermore, the Court reasoned that assessing attorney fees against plaintiffs simply because they do not ultimately prevail would significantly add to the inherent risks in most litigation and would undermine the efforts of Congress to promote the strenuous enforcement of civil rights law. Id. at 14-15, 101 S.Ct. at 178 (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. at 422, 98 S.Ct. at 701).

Therefore, a prevailing defendant may only be awarded attorney fees "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Christiansburg, 434 U.S. at 421, 98 S.Ct. 694. The Supreme Court in Fox v. Vice, U.S. , 131 S.Ct. 2205, 2213-14, 180 L.Ed.2d 45 (2011), recognized that while the standard is clear, applying the standard is not:

[I]n the real world, litigation is more complex, involving multiple claims for relief that implicate a mix of legal theories and have different merits. Some claims succeed; others fail. Some charges are frivolous; others (even if not ultimately successful) have a reasonable basis.

The Supreme Court in Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700-01, sought to refine application of the standard the Court set forth:

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 airtight 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 ...

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