F I L E D

United States Court of Appeals

Tenth Circuit

August 31, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NAOMI OLSEN; TOM OLSEN,

Plaintiffs-Appellants,

 v.

WILLIAM AEBERSOLD, individually

and doing business as Gable

Properties; MIKE MORGAN, doing

business as agent/employee/other for

William Aebersold; FARMERS

INSURANCE GROUP; ROBERT

BABCOCK, individually and as an

agent/employee/other and/or business

partner and/or associate of Ann Kantor

and/or Albert O. Engel; ANN

KANTOR, individually and as an

agent/employee/other and/or business

partner and/or associate of Robert

Babcock and/or Albert O. Engel;

ALBERT ENGEL, individually and as

an agent/employee/other and/or

business partner and/or associate of

Robert Babcock and/or Ann Kantor,

doing business as Triple A Machine

Shop, Inc., a California corporation,

Defendants,

 and

FIRE INSURANCE EXCHANGE,

Defendant-Appellee.

Nos. 03-2230 & 03-2238

(D.C. No. CIV-01-762 PJK/DJS)

(D. N.M.)
* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1 Even though plaintiffs filed two notices of appeal, resulting in two

appellate case numbers, their appeal is from only one district court judgment. 

-2-

ORDER AND JUDGMENT *

Before HENRY, ANDERSON , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiffs Naomi Olsen and Tom Olsen, proceeding pro se, challenge the

district court’s order granting the motion for attorney fees filed by Fire Insurance

Exchange, the sole appellee in this action. 1 The district court awarded

defendant-appellee $2,721.50 pursuant to 42 U.S.C. § 1988. We affirm.

Background

Plaintiffs have filed several lawsuits arising from the rental of a home in

California that was contaminated with mold and fungus. In this case, they sued

under 42 U.S.C. § 1983, alleging that the defendants violated their civil rights. 
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The district court afforded plaintiff’s complaint a liberal construction, and

dismissed the case on the ground that plaintiffs failed to state a federal claim on

which relief may be granted. In a prior appeal, a panel of this court determined

that plaintiffs’ claims were too insubstantial to invoke the jurisdiction of the

federal court because plaintiffs “did not identify a federal right that defendants

invaded, nor did they allege facts showing that defendants acted under color of

state law.” Olsen v. Aebersold , 71 Fed. Appx. 7, 9 (10th Cir. 2003). 

Accordingly, the case was remanded with directions for the district court to

dismiss it without prejudice for lack of subject-matter jurisdiction. Id. at 10. The

district court was also directed to reconsider the attorney-fee award on remand,

specifically, whether the dismissal on the merits for lack of jurisdiction divested

the federal district court of jurisdiction to award attorney fees to defendant. Id.

On remand, the district court determined that federal subject-matter

jurisdiction lies to award attorney fees under § 1988, even though jurisdiction

over the merits is lacking. The court then found plaintiffs’ claims meritless under

the applicable standard, and awarded attorney fees to defendant. 

Plaintiffs appeal, arguing that they did not receive defendant’s motion for

attorney fees, and that the attorney-fee award should be vacated because they

were acting in good faith when they filed the underlying lawsuit. 
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Motion to Dismiss

Defendant filed a motion to dismiss this appeal. The grounds for the

motion pertain to the merits of the appeal, rather than to appellate jurisdiction or

any ground listed in 10th Cir. R. 27.2(A)(1) (listing types of dispositive motions a

party may file). Consequently, the motion to dismiss is denied. 

Jurisdiction

After the remand in this case and after the district court issued its

post-remand order awarding defendant its attorney fees, this court resolved the

jurisdictional issue presented here. In United States ex rel. Grynberg v. Praxair,

Inc. , 389 F.3d 1038, 1056-58 (10th Cir. 2004), cert. denied , 125 S. Ct. 2964

(2005), this court held that a federal court has subject-matter jurisdiction over a

request for attorney fees even in the absence of subject-matter jurisdiction over

the underlying claim. Accordingly, we proceed to the merits.

Merits

“We review both the court’s decision to award attorney’s fees and the

reasonableness of the amount awarded for an abuse of discretion.” Houston v.

Norton , 215 F.3d 1172, 1174 (10th Cir. 2000). We review the district court’s

findings of fact for clear error, and its legal conclusions, including the

interpretation of statutes, de novo. Id. In this case, however, plaintiffs have not

challenged the amount awarded, either in the district court or this court, so we
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review only the decision to award attorney fees. See Wilburn v. Mid-South Health

Dev., Inc. , 343 F.3d 1274, 1280 (10th Cir. 2003) (stating arguments not presented

to district court generally will not be considered on appeal); State Farm Fire &

Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (stating failure to raise

an issue in opening brief waives the issue).

A prevailing party in a civil rights suit may recover attorney fees. 42

U.S.C. § 1988(b). “[A] prevailing defendant in a civil rights action may recover

attorney fees only if the suit was vexatious, frivolous, or brought to harass or

embarrass the defendant.” Mitchell v. City of Moore , 218 F.3d 1190, 1203 (10th

Cir. 2000) (quotations omitted). Although this is a demanding standard, id., and

it is rare for attorney fees to be assessed against a pro se plaintiff in a § 1983

action, a district court has discretion to do so, see Houston , 215 F.3d at 1174. 

“Pro se petitioners have a greater capacity than most to disrupt the fair allocation

of judicial resources because they are not subject to the financial considerations –

filing fees and attorney’s fees – that deter other litigants from filing frivolous

petitions.” In re Anderson , 511 U.S. 364, 365 (1994) (quoting In re Sindram , 498

U.S. 177, 179-80 (1991)). Attorney fees are not available against a pro se litigant

unless the action is “meritless in the sense that it is groundless or without

foundation.” Hughes v. Rowe , 449 U.S. 5, 14 (1980).
2 We decline to reverse the district court’s award of attorney fees on the

ground that plaintiffs now claim that they did not receive the motion for attorney

fees. Defendant filed its attorney-fee motion on the same date it filed a motion

for costs. R. docs. 40, 41, 42, & 43. Plaintiffs claim they received neither

motion, yet they admit they reviewed the costs motion. Moreover, they made no

attempt to rectify this alleged error in the district court.

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The district court held that the circumstances of this case met the

demanding standard for imposing attorney fees on a pro se civil rights plaintiff. 

The court found that plaintiffs had filed several federal lawsuits, all of which

involved jurisdictional challenges. See R. doc. 48, at 6 & n.1. The court also

found that plaintiffs had failed to consider the necessary element of federal

jurisdiction in this case. Indeed, the court had previously identified deficiencies

in the complaint under Fed. R. Civ. P. 8(a), which requires a party to include in

his complaint a “statement of the grounds upon which the court’s jurisdiction

depends.” Plaintiffs maintain that they acted in good faith, but they offer no

argument or authority to refute the district court’s findings. We see no error in

the district court’s determination that plaintiffs’ claims of federal jurisdiction

were sufficiently groundless or without foundation to be meritless under the

standards set forth above. Consequently, we conclude that the district court did

not abuse its discretion in awarding defendant its attorney fees. 2

 
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Defendant’s motion to dismiss the appeal is denied. The judgment of the

district court is AFFIRMED. The mandate shall issue forthwith. 

Entered for the Court

Robert H. Henry

Circuit Judge