Roberts v. City of Phoenix (CA1 7/2/10)

This a factually complicated situation that we can simplify quite a bit without missing anything legally important. The important parts come at the end, where the court talks about when and against whom fees can be awarded, and how they can be calculated, as a sanction for discovery violations.

After the police stopped Roberts he made a §1983 claim, alleging basically that they hassled him because he was gay. At trial the court granted the City JMOL.

Before trial Roberts had tried to get one of the officers’ personnel files but the trial court, after reviewing it in camera, refused to compel its production. After trial Roberts discovered that there had been prior complaints against the officer for harassing gays, so he moved to set aside the judgment on the basis of newly-discovered evidence. The court reviewed the documents – again, apparently – and granted the motion. The City appealed, the Court of Appeals affirmed, and the matter headed for new trial.

The ensuing, renewed fight over the personnel file takes the court nine pages to describe. Basically, the City made repeated but incomplete productions, there were charges of “purged” files, the City kept blaming things on inadequate systems and innocent confusion,  and it didn’t help itself by having people repeatedly swear up and down that it had produced everything only to discover more things it hadn’t produced yet. It also didn’t help that during this Roberts was incapacitated in a motorcycle accident and wouldn’t have been able to participate at the second trial. The judge finally struck the City’s answer, awarding Roberts a little bit in damages and over a quarter of a million in attorneys fees. The City appealed.

The Court of Appeals affirmed the decision to strike the Answer, as of course it was going to do after recounting the City’s sins at such length. Nothing of real precedential value here, except as an example that pleadings may indeed be stricken if things are bad enough.

On the fee issue, the City argued that §§1983/1988 do not allow a fee award when the plaintiff does not succeed on the merits or receives only minimal damages. The trial court also cited Rule 37(c) but referred to a “loadstar” method to figure fees, which is done under §1988. This opinion holds, however, that “loadstar” fees can be awarded under Rule 37(c) as well. The method of calculating the award, the court says, is within the sound discretion of the trial court. (The opinion briefly describes the court’s fee calculation; it isn’t evident how or whether she used a loadstar.)

The court points out that while the damages might have been minimal they were not nominal, that the two are substantively different, and that even if they were nominal Roberts was still the prevailing party.

The City argued that fees were inappropriate because the merits were not “actually litigated.” But it relied on a case the involved a stipulated dismissal, which the court distinguished because this dismissal was a sanction for repeated, continuing discovery violations, and the judgment was entered after a hearing on the damages. The court therefore concludes that judgment was on the merits. (We can’t help feeling that this argument would have sounded better to a court if the City hadn’t had so much else going against it. However richly merited the judgment was, it wasn’t on the merits.)

Roberts, by cross-appeal, argued that his attorneys fees should be awarded against City’s lawyers as well as against the City. The trial court’s refusal to do so did not abuse her discretion, as she indicated that the problem was the City’s fault rather than counsels’ fault.

(link to opinion)