United States District Court, D. Massachusetts
STEPHEN R. TARBELL, Plaintiff,
ROCKY'S ACE HARDWARE, Defendant.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION FOR TAXATION OF COSTS AND FEES
Gail Dein United States Magistrate Judge
plaintiff, Stephen R. Tarbell, brought suit against his
former employer, Rocky's Ace Hardware
(“Rocky's”), alleging that Rocky's had
discriminated against him due to his heart condition by
taking various adverse job actions against him and,
ultimately, terminating his employment with the company. Mr.
Tarbell's suit against Rocky's survived a motion to
dismiss. See Docket No. 17. However, after discovery was
complete, Rocky's moved for summary judgment and
prevailed. Docket No. 77. The parties' dispute continues,
however, and the matter is before the court on
defendant's Motion for Taxation of Costs and Fees (Docket
No. 79), pursuant to which Rocky's is seeking to recover
attorney's fees in the amount $45, 252.00 and costs in
the amount of $2, 859.24 for a total of $48, 111.24. Docket
80-7. For the reasons detailed herein, the Motion is DENIED.
This case was not frivolous, and the case does not meet the
criteria for awarding attorney's fees and costs.
Moreover, this court declines to award the fees and costs as
a matter of discretion.
STANDARD FOR AWARDING FEES AND COSTS
commenced this action alleging that Rocky's was liable
for disability discrimination pursuant to the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et
seq. (“ADA”) and its Massachusetts
counterpart, Mass. Gen. Laws ch. 151B, § 4. The standard
for awarding attorney's fees and costs to a prevailing
defendant under the ADA is the same as awarding fees and
costs to a prevailing defendant under other civil rights
statutes, including 42 U.S.C. § 1988. Bercovitch v.
Baldwin Sch., Inc., 191 F.3d 8, 10-11 (1st Cir. 1999).
Thus, “attorney's fees may not be awarded to a
prevailing defendant under the ADA unless the defendant
establishes that the plaintiff's suit was totally
unfounded, frivolous, or otherwise unreasonable or that the
plaintiff continued the litigation after it clearly became
so.” Id. at 11. As another judge of this court
comprehensively explained the applicable standard:
“[S]ection 1988 grants courts the discretion to award a
‘reasonable attorney's fee' to the prevailing
parties in suits under various civil rights statutes,
including 42 U.S.C. § 1983.” Lamboy-Ortiz v.
Ortiz-Vélez, 630 F.3d 228, 235 (1st Cir. 2010)
(quoting 42 U.S.C. § 1988(b)). “[A]n award of fees
in favor of a prevailing plaintiff in a civil rights suit is
‘the rule, whereas fee-shifting in favor of a
prevailing defendant is the exception.'”
Id. at 236 (quoting Casa Marie Hogar Geriatrico,
Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir.
1994)). Prevailing defendants “may be granted
attorneys' fees only ‘upon a finding that the
plaintiff's action was frivolous, unreasonable, or
without foundation, even though not brought in subjective bad
faith.'” Rosselló-González v.
Acevedo-Vilá, 483 F.3d 1, 6 (1st Cir. 2007)
(quoting Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 421 (1978)). “In deter-mining whether this
standard has been met, the court must assess the claim at the
time the complaint was filed, and must avoid the post-hoc
reasoning that, because the plaintiff did not ultimately
prevail, the claim must have been frivolous, unreasonable or
without foundation.” Tang v. State of R.I.,
Dep't of Elderly Affairs, 163 F.3d 7, 13 (1st Cir.
1998). Considering the case at the time it was filed is
important to ensure that a fee award does not deter future
plaintiffs from coming forward:
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 clarify in the midst of litigation. Even
when the law or the facts appear questionable or unfavorable
at the outset, a party may have an entirely reasonable ground
for bringing suit.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
422 (1978). Fee awards to defendants are also permitted
“on rare occasions where ‘the plaintiff continued
to litigate after [the claims] clearly became
[frivolous, unreasonable, or groundless].'”
Lamboy-Ortiz, 630 F.3d at 241 (quoting
Christiansburg, 434 U.S. at 422). In such a case,
the court “must at a minimum find that, following the
filing of the claim, circumstances changed to such an extent
that a reasonable person could not help but conclude that the
claim was no longer viable.” Lamboy-Ortiz, 630
F.3d at 241-42 (citing Christiansburg, 434 U.S. at
421). This type of shift could “include, for example,
the receipt of evidence in the course of discovery
establishing a complete defense, or a development in the
controlling law that foreclosed the claim.”
Id. at 422.
“[D]ecisions to grant defendants their fees are, and
should be, rare....” Tang, 163 F.3d at 13. The
“standard is, by design, a difficult one to
meet.” Torres-Santiago v. Municipality of
Adjuntas, 693 F.3d 230, 234 (1st Cir. 2012).
“Congress granted parties the prospect of a reasonable
attorney's fee under 42 U.S.C. § 1988 to encourage
the prosecution of legitimate civil rights claims; to award
fees to prevailing defendants when the history of a case does
not justify it undercuts that goal and chills civil rights
litigation.” Id. (quoting
Lamboy-Ortiz, 630 F.3d at 236). Furthermore, the
district court retains the discretion to deny a
defendant's fee request even if it determines that the
lawsuit was “groundless when brought or continued,
” Bercovitch v. Baldwin Sch., Inc., 191 F.3d
8, 12 (1st Cir. 1999), or if it concludes that the lawsuit
was frivolous, as long as the court “consider[s] all
the nuances” of the particular case. Tang, 163
F.3d at 15.
Mondol v. City of Somerville, No. 15-cv-13697-ADB,
2017 WL 6003050, at *1-2 (D. Mass. Dec. 4, 2017). Applying
these principles to the instant case compels the conclusion
that fees and costs are not appropriately awarded here.
Merits of the Case
parties have always had diametrically opposed views of the
events that transpired while Mr. Tarbell was employed by
Rocky's - mostly due to the fact that each side
attributes improper motives to the other. This court has
already spent considerable time parsing through a very
detailed record to rule on the motion for summary judgment,
and declines any invitation to do so again. Suffice it to
say, this court does not find that the complaint was
frivolous when filed.
principle argument is that many of the claims asserted by Mr.
Tarbell were time-barred. In particular, this court ruled
that Mr. Tarbell's claims of discrimination stemming from
his transfer from the Walpole store to the Randolph store in
May 2012, from Rocky's failure to offer him a different
job in May 2012, and relating to his being forced to take
FMLA leave, were time-barred. However, this court ruled
further that Mr. Tarbell's claims relating to Rocky's
failure to hire him for the Assistant Manager position in
Canton, Rocky's alleged failure to provide a post-FMLA
leave accommodation to him in the form of reduced hours or a
leave of absence, and Rocky's termination of Mr.
Tarbell's employment, were all ...