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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

DANIEL GOUIN,

Plaintiff,

v.

CLALLAM COUNTY; DAVE MEYER and

PILI MEYER, and the marital community

comprised thereof; and MARJORIE UPHAM,

and the community comprised thereof,

Defendants.

Case No. C06-5247 FDB

ORDER DENYING DEFENDANTS’

MOTION FOR ATTORNEY FEES

AND COSTS

This matter comes before the Court on Defendants’ Motion for Attorney Fees and Costs. 

After reviewing all materials submitted by the parties and relied upon for authority, the Court is fully

informed, and for the reasons stated below, hereby denies the motion for an award of fees and costs.

INTRODUCTION AND BACKGROUND

In this employment action for wrongful discharge, this Court granted Defendants’ motion for

summary judgment, finding Plaintiff’s claims barred by the applicable three-year statutes of

limitation. Plaintiff commenced this action on December 23, 2005. This was within three years of

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Defendants cite 42 U.S.C. §2000e-5(k); 28 U.S.C. §1927, 42 U.S.C. §1983, and RCW

4.84.185 as a basis for an award of attorney fees. It appears that 42 U.S.C. §2000e-5(k) is

inapplicable as Plaintiff did not file a Title VII claim to which this provision applies. Nonetheless, all

of the cited provisions providing for an award of fees, provide that they may be awarded at the

court’s discretion where the claim is frivolous, unreasonable, groundless or without foundation. 

ORDER - 2

the actual date of his termination of employment, December 31, 2002. However, Plaintiff’s cause of

action accrued and the statute of limitations commenced to run, at the latest, on December 20, 2002

when he received notice that his position would be eliminated effective December 31, 2002. Having

failed to timely file the action, Plaintiff sought to have the statute of limitations equitably or

statutorily tolled due to incapacity. The Court held Plaintiff failed to raise a genuine issue of fact that

would support application of either of these tolling provisions, and dismissed the action.

PROVISION FOR AN AWARD OF ATTORNEY FEES

The Defendants assert that Plaintiff’s claims were frivolous, unreasonable, or without

foundation, because he pursued a claim that was barred by the statutes of limitation, and thus, they

are entitled to an award of attorney fees.1

 A prevailing defendant in a 42 U.S.C. § 1983 suit should

be awarded attorney fees only when the action is “unreasonable, frivolous, merciless, or vexatious.” 

Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir. 1994). RCW 4.84.185 allows an award

of fees where the action is “frivolous and advanced without reasonable cause.” 28 U.S.C. 1927

provides for an assessment of attorney fees against a plaintiff who maintains a case in federal court

after realizing it has no merit.

An award of fees to a prevailing defendant is unusual because the policy reasons behind the

award of fees to a prevailing plaintiff are not present when a defendant prevails. In Christianburg

Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), the Supreme Court held that a defendant in an

action under Title VII can recover attorney's fees against the plaintiff only where the action is found

to be "frivolous, unreasonable, or without foundation, even though not brought in subjective bad

faith." The Supreme Court provided the following caveat:

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26 ORDER - 3

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 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, at 421-22. In Hughes v. Rowe, 449 U.S. 5, 14 (1980), the Supreme Court extended

Christianburg 's standard to civil rights actions brought under § 1983, finding that defendants may

recover attorney's fees against the plaintiff only if the "action is meritless in the sense that it is

groundless or without foundation." See also Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th

Cir. 1994). The Ninth Circuit has further held that "[a]ttorneys' fees in civil rights cases should only

be awarded to a defendant in exceptional circumstances." Brooks v. Cook, 938 F.2d 1048, 1055 (9th

Cir. 1991); Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990).

In this case, although the Court has granted the motion to dismiss, Plaintiff's claim appears to

have been made with the genuine belief that it raised viable claims for redress of discrimination and

wrongful discharge. The Court, while not deciding the merits of Plaintiff’s allegations, determined

that the claims were time barred. The Court does not conclude, however, that pursuing the claims

was frivolous or unreasonable. Despite Defendants' arguments, the Court is unwilling to find that

Plaintiff's action was frivolous, unreasonable, or without foundation. Plaintiff was an employee of

Defendants who felt that he was discriminated against. Plaintiff was not overly vexatious to the

Defendants and did not repeatedly bring a claim that was previously found to be frivolous. Rather,

Plaintiff, proceeding pro se, initially attempted to obtain relief through the EEOC for the perceived

harassment and then commenced this suit pro se for wrongful termination before enlisting the

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Counsel assisted Plaintiff with discovery and attempted to effectuate a settlement. 

3

Defendants’ request for an award of statutorily authorized costs is denied on the same basis

as the attorney fees request. The Clerk may award appropriate costs pursuant to Fed. R. Civ. P.

54(1) 

ORDER - 4

services of counsel.2 The Court may consider a plaintiff's pro se status when determining whether an

award of attorney's fees is proper. See Miller v. Los Angeles Count Bd. of Educ., 827 F.2d 617, 620

(9th Cir. 1987). Attorney's fees may be appropriate where a pro se plaintiff continues to bring claims

that were previously found to be frivolous, but absent such extreme conduct, courts are less likely to

award attorney's fees against a pro se plaintiff who may not be able to recognize what constitutes a

frivolous complaint. Id. 

Though summary judgment was granted in favor of Defendants, Plaintiff's claim was not

frivolous, unreasonable, or advanced without reasonable cause. Defendants are not entitled to an

award of attorney fees and costs under either federal or state statutory law.3

ACCORDINGLY;

IT IS ORDERED:

Defendants’ Motion for Attorney Fees and Costs [Dkt. #42] is DENIED.

DATED this 9th day of August, 2007.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

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