United States District Court, W.D. Pennsylvania
Barry Fischer U.S. District Judge.
a civil rights action brought by Plaintiff Bethany Ann
Pazicni, (“Plaintiff”), which was dismissed by
the Court in a Memorandum Opinion and Order issued on June 5,
2017, granting motions to dismiss filed by Defendants Russell
P. Miller, Jr., Allen Clarke, and South Connellsville
Borough, (“Defendants”). (Docket Nos. 43; 44).
Presently before the Court are contested motions filed by
Defendants seeking an award of their attorneys' fees as
prevailing parties under 42 U.S.C. § 1988. (Docket Nos.
45; 48). The motions have been fully briefed and are now ripe
for disposition. (Docket Nos. 45-46; 48-49; 51-54). After
careful consideration of the parties' positions, in light
of the relevant legal authority outlined below,
Defendants' Motions   will be denied.
Court initially turns to the relevant legal
standard. It is well settled that under the
“American rule, ” litigants generally pay their
own attorneys' fees and costs, absent a specific
legislative or contractual authorization for same. See
e.g., Equal Employment Opportunity Comm. v. Grane Healthcare
Co., 2016 WL 3349344, at *5 (W.D. Pa. Jun. 15, 2016)
(discussing statutory exceptions to American rule);
Rosser Intern., Inc. v. Walter P. Moore & Assoc.,
Inc., 2013 WL 3989437, at *14 (W.D. Pa. Aug. 2, 2013)
(discussing contractual agreements shifting fees as
exceptions to American rule). One such exception is 42 U.S.C.
§ 1988, pursuant to which “a court has discretion
to ‘allow the prevailing party, other than the United
States, a reasonable attorney's fee' in a civil
rights lawsuit filed under 42 U.S.C. § 1983.”
James v. City of Boise, Idaho, 136 S.Ct. 685, 686,
193 L.Ed.2d 694 (2016) (quoting 42 U.S.C. § 1988). While
either plaintiffs or defendants may qualify as prevailing
parties, the Supreme Court of the United States has
“interpreted § 1988 to permit a prevailing
defendant in such a suit to recover fees only if ‘the
plaintiff's action was frivolous, unreasonable, or
without foundation.'” Id. (quoting Hughes v.
Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)
(per curiam)). The United States Court of Appeals for the
Third Circuit noted that this is a “stringent”
standard and that “[a]ttorney's fees for prevailing
defendants under this standard are ‘not routine, but
are to be only sparingly awarded.'” Raab v.
City of Ocean City, New Jersey, 833 F.3d 286, 297 (3d
Cir. 2016) (quoting Quiroga v. Hasbro, Inc., 934
F.2d 497, 503 (3d Cir. 1991)). The Court of Appeals also:
identified several factors relevant to determining whether an
award of attorneys' fees is appropriate, including:
whether the plaintiff established a prima facie case; whether
the defendant offered to settle; whether the trial court
dismissed the case prior to trial; whether the case involved
an issue of first impression; whether the controversy was
based sufficiently upon a real threat of injury to the
plaintiff; and whether the trial court found that the suit
Ullman v. Superior Court of Pennsylvania, 603
F.App'x 77, 80 (3d Cir. 2015), cert. denied, 136 S.Ct.
180, 193 L.Ed.2d 144 (2015) (citing Barnes Found. v. Twp.
of Lower Merion, 242 F.3d 151, 158 (3d Cir. 2001)).
These factors are to be viewed as “merely guidelines,
not strict rules” and the ultimate determination of
whether to award fees to a prevailing defendant must be made
on a case-by-case basis. Barnes Found., 242 F.3d at 158.
Court's estimation, a fair weighing of the aforementioned
factors demonstrates that Defendants have not met their
burden to justify the imposition of attorneys' fees
pursuant to § 1988. Barnes Found., 242 F.3d at 158. With
that said, several of those factors weigh in Defendants'
favor. To this end, Plaintiff's federal claims were all
dismissed, with prejudice, and the entire case was dismissed
prior to trial on the merits. (Docket Nos. 43, 44). However,
“[t]he fact that a plaintiff may ultimately lose [her]
case is not in itself a sufficient justification for the
assessment of fees, ” Raab, 833 F.3d at 297 (quoting
Hughes, 449 U.S. at 14, 101 S.Ct. 173)), and Plaintiff's
state law claim of intentional infliction of emotional
distress was dismissed, without prejudice, to be refiled in
state court. (See Docket Nos. 43, 44). Defendants also did
not make a settlement offer which supports their pursuit of
attorneys' fees. Barnes Found., 242 F.3d at 158. Perhaps,
the same is tempered by the fact that they did not have a
formal opportunity to do so because the case was dismissed
prior to the case being referred to mandatory ADR; however,
once a claim is made parties are free to negotiate a
resolution without resort to litigation.
those considerations, all of the remaining factors strongly
weigh in favor of Plaintiff and counsel the Court to deny the
defense motions for attorneys' fees. See Barnes Found.,
242 F.3d at 158. In this regard, Plaintiff made serious
allegations that a local police chief, Miller, and her
ex-boyfriend, Clarke, fabricated evidence against her in
citations for summary offenses which were filed with a local
magistrate judge, making her claim “sufficiently based
on upon a real threat of injury.” Id. As the
Court's former colleague, the Honorable Terrence F.
McVerry previously explained “[w]hen a citizen
reasonably believes that [her] constitutional rights
[…] have been violated, that citizen is entitled to
pursue a federal lawsuit to effectuate those rights. Indeed,
upholding the constitutional rights of citizens is one of the
most important tasks of the federal judiciary.”
Yurisic v. Carter, No. 2:08-CV-971, 2010 WL 3811455,
at *3 (W.D. Pa. Sept. 21, 2010). Although this Court held
that Plaintiff failed to sufficiently allege that she
sustained a sufficient deprivation of liberty to permit her
claim to move into discovery, such result was reached only
after the Court noted a lack of binding authority from our
Court of Appeals which was directly on point, (Docket No. 43
at 12-14, n.3), reviewed caselaw from outside this Circuit
and gave careful consideration to all of the parties'
arguments. See e.g., Solomen v. Redwood Advisory
Co., 223 F.Supp.2d 681, 685 (E.D. Pa. 2002) (“The
serious consideration that I gave to this question precludes
my finding either that the answer was obvious or that the
claim was therefore frivolous or unreasonable”);
Musila v. Lock Haven Univ., 970 F.Supp.2d 384, 395
(M.D. Pa. 2013) (“It took the Court considerable time
and effort to research the nuances of [Plaintiff]'s
claim, and it concludes that it was not unreasonable for
[Plaintiff] to believe that he may have had a viable
claim”). The Court did not rule on the merits of
whether the Defendants fabricated evidence or not. (Docket
No. 43 at 12-14). Rather, the Court concluded that Plaintiff
could not sustain a § 1983 claim because the underlying
citations were dismissed at a preliminary hearing that she
attended and it appears that those citations were dismissed
only due to the fact that the chief of police did not himself
appear at the proceeding. (Id.). It was simply not
unreasonable for Plaintiff to assert claims based on this
factual scenario and she may still have a viable claim
against Defendants in another forum. See Raab, 833 F.3d at
298; see also Musila, 970 F.Supp.2d at 395. Overall, the
Court cannot conclude on this record that Plaintiff's
suit was “frivolous, unreasonable, or without
foundation.'” See Raab, 833 F.3d at 298 (quoting
Hughes, 449 U.S. at 14) (“Even if a plaintiff's
allegations are ultimately ‘legally insufficient to
require a trial, ' that alone is not enough to render the
plaintiff's cause of action ‘groundless' or
‘without foundation.'”). Accordingly, the
Court exercises its discretion to deny the Defendants'
motions for attorneys' fees under § 1988.
of these reasons, IT IS HEREBY ORDERED that Defendants'
Motions   are DENIED.
 As the parties are aware of the
factual circumstances of this litigation and the same is
otherwise set forth in the Court's June 5, 2017
Memorandum Opinion, the Court declines to fully restate ...