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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Cleopatria Martinez,

Plaintiff,

v.

Maricopa County Community College 

District; et al.,

Defendants.

No. CV-15-01759-PHX-NVW

DEFENDANTS’ NOTICE OF 

MOTION AND MOTION FOR 

ATTORNEYS’ FEES AND COSTS

Defendants Maricopa County Community College District (“MCCCD”) and 

Rufus and Debra Glasper (collectively “Defendants”), by and through counsel 

undersigned, hereby submits this Notice of Motion and Motion for Attorneys’ Fees and 

Costs in compliance with Rule 54.2 of the Local Rules of Civil Procedure. 

After more than two years of litigation, Defendants prevailed on their Motion for 

Summary Judgment and the Court dismissed all of Plaintiff’s claims with prejudice –

including Plaintiff’s four causes of action alleging violations of due process and 

Plaintiff’s fifth cause of action requesting declaratory relief. Indeed, the Court went so 

far as to comment that “[i]t may seem strange and even bizarre that the District’s rich 

and elaborate procedures for dismissal and suspension would nevertheless fall short of 

federal constitutional minimums of fairness” and that “Martinez has raised no colorable 

Pavneet Singh Uppal, SBN 016805

Shayna H. Balch, SBN 024852

FISHER & PHILLIPS LLP

3200 N. Central Avenue, Suite 805

Phoenix, Arizona 85012-2425

Telephone: (602) 281-3400

Fax: (602) 281-3401

puppal@fisherphillips.com

sbalch@fisherphillips.com

Attorneys for Defendant

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federal claim of deprivation of property without due process of law.” (Doc. 91, p. 3). 

Accordingly, for the reasons set forth more fully below in Defendants’ 

Memorandum of Points and Authorities, Defendants respectfully request that the Court 

award Defendants’ reasonable attorneys’ fees and costs in the amount of $110,000.00

pursuant to 42 U.S.C. § 1988, Rule 54(d)(2) of the Federal Rules of Civil Procedure, and 

Rule 54.2 of the Rules of Practice for the United States District Court for the District of 

Arizona. The requested fee award of $110,000.00 represents a more than 50% reduction 

from the actual fees and costs which Defendants were forced to incur to defend 

themselves against the Plaintiff’s meritless claims. 

Defendants’ motion is supported by the following memorandum of points and 

authorities, the affidavit of undersigned defense counsel (Exhibit A), Defendants’

Statement of Consultation (Exhibit B), its Task-Based Itemized Statement of Attorneys’ 

Fees and Non-Taxable Costs, and by the entire record in this matter.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendants recognize that there are strong public policy considerations that, in a 

normal case, weigh against awarding attorneys’ fees and costs against a plaintiff in an 

employment case. Thus, Defendants have rarely, if ever, sought a fee award after 

prevailing in an employment matter. This, however, is far from a normal matter. This is 

not a case in which a plaintiff incorrectly, albeit reasonably, alleged due process 

violations. To the contrary, and as set forth in greater detail below, Plaintiff Cleopatria 

Martinez vexatiously sued and maintained two separate federal lawsuits against 

Defendants over the past five years without any justification despite her ongoing and 

undisputed insubordination. Absent an appropriate sanction by the Court, Plaintiff is 

likely to continue filing vexatious lawsuits in response to any legitimate measures 

MCCCD takes to enforce its lawful policies. Accordingly, the Court should award 

MCCCD’s its requested attorneys’ fees and non-taxable costs in the amount of 

$110,000.00 (“Requested Amount”) incurred as a result of defending Plaintiff’s claims.

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II. PROCEDURAL & FACTUAL BACKGROUND

This lawsuit is the second meritless lawsuit Plaintiff Cleopatria Martinez 

(“Martinez”) has filed against Maricopa County Community College District 

(“MCCCD”) in federal district court. In the first lawsuit, 2:12-cv-00702-DGC, Plaintiff 

alleged national origin discrimination, harassment, and retaliation under Title VII in 

addition to race discrimination, harassment, and retaliation under 42 U.S.C. § 1983. 

Plaintiff’s allegations against MCCCD in this first lawsuit were utterly without basis in 

fact or the law. Indeed, one of Plaintiff’s main allegations in support of her race and 

national origin discrimination claims against MCCCD was that the then President of 

MCCCD’s Phoenix College, Anna Solley (Hispanic/Mexican) had subjected Plaintiff to 

discrimination and harassment based on Plaintiff’s own Hispanic race and Mexican 

national origin. See MCCCD’s Motion for Summary Judgment at Exhibit C. Despite 

the baseless nature of Plaintiff’s claims against MCCCD, Plaintiff forced MCCCD to 

incur substantial expenses in defending itself for nearly two years in federal court. 

MCCCD repeatedly requested that Plaintiff dismiss her claims but she obstinately 

refused to do so. Only after discovery had come to a close and MCCCD had incurred 

the legal fees associated with filing a motion for summary judgment, did Plaintiff 

ultimately abandon her claims by seeking a stipulation from MCCCD regarding her 

voluntary dismissal of her claims, with each side to incur their own fees. The dismissal 

was not part of a settlement reached between the parties. 

In the instant lawsuit, Plaintiff once again filed a baseless lawsuit against 

MCCCD. The complaint alleged five separate counts against Defendants, including four 

separate Due Process claims and one claim for declaratory judgment. The Court found 

that Plaintiff effectively abandoned two of the Due Process Claims, and also found the 

other two Due Process Claims “bizarre,” “elusive,” and “no[t] colorable,” and the final 

claim irrelevant (Doc. 91 at 3, 14, 17, 18).

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III. LEGAL ARGUMENT

A. Defendant Is Eligible For An Award Of Attorneys’ Fees.

In any action or proceeding to enforce a provision of 42 U.S.C. § 1983, a court, in 

its discretion, may allow the prevailing party reasonable attorneys’ fee. 42 U.S.C. § 1988

(a Court may allow the prevailing party a reasonable attorneys’ fee in an action to 

enforce a provision of 42 U.S.C. § 1983). A prevailing defendant may recover fees

where the court finds that the plaintiff's claims are “frivolous, unreasonable, or 

groundless.” Christianburg Garment Co. v. Equal Employment Opportunity Comm’n, 

434 U.S. 412, 422 (1978); see also Galen v. County of Los Angeles, 477 F.3d 652, 666 

(9th Cir.2007) (applying Christianburg standard to § 1983 claims). A prevailing 

defendant may also recover attorneys’ fees plaintiff continued to litigate after its claims 

clearly became unreasonable, frivolous, or groundless. Id. at 421. In determining that 

Congress permitted employers to recover fees in civil rights cases, the Supreme Court 

recognized that public policy supports the awarding of attorneys’ fees in appropriate 

cases:

[an] allowance of awards to defendants would serve ‘to deter 

the bringing of lawsuits without foundation,’ ‘to discourage 

frivolous suits,’ and ‘to diminish the likelihood of unjustified 

suits being brought.’ If anything can be gleaned from these 

fragments of legislative history, it is that while Congress 

wanted to clear the way for suits to be brought under the Act, 

it also wanted to protect defendants from burdensome 

litigation having no legal or factual basis.

Christianburg at 420. 

A prevailing defendant need not show the plaintiff’s claim was brought in bad 

faith, but only that a reasonable person would have recognized the claim as meritless. Id. 

at 422. However, “if a plaintiff is found to have brought or continued such a claim in bad 

faith, there will be an even stronger basis for charging him [or her] with the attorney's 

fees incurred by the defense.” Id. 5. In determining the propriety of a bad faith fee 

award, “the inquiry will focus primarily on the conduct and motive of a party, rather than 

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on the validity of the case. Rothenberg v. Sec. Mgmt. Co., 736 F.2d 1470, 1472 (11th 

Cir. 1984). Relevant to the instant case, this Court recently found:

In some cases bad faith may be shown from direct evidence 

of intent . . . [b]ut in most cases, bad faith must be proved 

circumstantially. There are indications of both in this case. 

[Plaintiff]’s prolonged display of contempt, 

contumaciousness, and attacks on her supervisor, unrelated 

to any protected activity, strongly suggest a personal motive. 

Weak or non-existent foundation for litigation suggests there 

may very well have been other true motives for the litigation. 

Watson at 1003.

Here, there is no dispute that Defendants are the prevailing party in this litigation. 

On November 1, 2017, the Court issued an order in response to parties’ cross-motions 

for summary judgment. (Doc. 91). The Order granted summary judgment to Defendants’ 

on all five of Plaintiff’s claims, and denied Plaintiff’s cross-motion. Id. Final judgment 

was entered in Defendants’ favor on the same date. (Doc. 92). Consequently, 

Defendants are eligible for an award of attorneys’ fees. 

B. Defendant Is Entitled To An Award Of Attorneys’ Fees and NonTaxable Costs

1. Plaintiff’s Current Lawsuit Is Part and Parcel of Her Vexatious

Litigation Tactics.

There are ample undisputed facts in the record of this case, as well as the one 

prior, documenting prolonged displays of contempt by Plaintiff towards her employer. 

Specifically, the Court found that “the facts of [Plaintiff’s] insubordination are 

undisputed” and “[Plaintiff’s] insubordination continues to this day.” (Doc. 91 at 14). 

Additionally, “[Plaintiff] never claimed that she did not understand the instructions or 

that the instructions were beyond the scope of [Defendants’] authority.” (Doc. 91 at 17). 

Moreover, the Court resolved Plaintiff’s claims by finding that “[Plaintiff] was fully and 

richly accorded fair, adequate, impartial procedure in the District’s decision to suspend 

her for her undisputed insubordination and refusal to follow directions.” (Doc. 91 at 18). 

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However justified Plaintiff may feel in her contempt, that contempt cannot continue to 

manifest itself into baseless legal claims which MCCCD must defend at substantial 

expense.

In the prior case, 2:12-cv-00702-DGC, Plaintiff pursued baseless legal claims 

against MCCCD in response to its legitimate and nondiscriminatory attempt to enforce 

its reasonable and well-settled policies. Plaintiff litigated those claims for nearly two 

years against MCCCD, including through discovery and MCCCD’s filing of a motion 

for summary judgment. However, there Plaintiff stopped short of permitting the Court to 

find as it did here, instead offering to dismiss her claims with prejudice solely in 

exchange for MCCCD’s agreement to not seek attorneys’ fees or costs against her.

There, as in the instant case, Plaintiff vexatiously pursued claims against MCCCD 

without having any cognizable legal basis for doing so. And as a result, MCCCD was 

required to incur substantial expense for defending against Plaintiff’s claims.

Plaintiff did not stop short of MCCCD’s motion for summary judgment this time, 

and instead decided to double-down by filing her own cross-motion for summary 

judgment. Plaintiff’s cross-motion in this case served no useful purpose. It not only 

wasted limited judicial resources, but it also required MCCCD to unnecessarily incur 

additional legal fees in responding to Plaintiff’s motion for summary judgment and 355

page Separate Statement of Facts and exhibits. 

2. Plaintiff Filed The Instant Lawsuit in Bad Faith After She Had 

Received More Than Sufficient Due Process Protection From 

Defendants.

As the Court succinctly stated in its Order granting complete summary judgment 

in Defendants’ favor, Plaintiff’s due process claims were “elusive,” “bizarre,” and 

Plaintiff “[did] not even present a colorable argument of violation of due process of 

law.” (Doc. 91 at 3, 18). Simply put, Plaintiff’s instant lawsuit was brought in utter bad 

faith and without any basis in law or fact. 

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Accordingly, in assessing Defendants’ request for attorneys’ fees, the Court 

should first assess Plaintiff’s claims from the perspective of what she knew at the outset 

of her lawsuit. See EEOC v. Bruno's Restaurant, 13 F.3d 285, 290 (9th Cir. 1993). See 

also Watson v. County of Yavapai, 240 F. Supp. 3d 996, 1002-03 (D. Ariz. 2017) 

(awarding attorneys’ fees to defendant who alleged lack of ADA reasonable 

accommodation by her employer despite being present for and acknowledging the 

employer’s engagement in the interactive process and granting of accommodations prior 

to filing her lawsuit). However, “[a] defendant can recover if the plaintiff violates this 

standard at any point during the litigation, not just at its inception.” Galen, 477 F.3d at 

666 (emphasis added).

Here, Plaintiff was aware of and personally involved with nearly all of the

material facts prior to filing her claims. Plaintiff materially participated in all of the 

elaborate processes afforded her by Defendants prior to her suspension. As noted in 

Defendants’ summary judgment briefing, Plaintiff was provided with pre-disciplinary 

notice of the insubordination charge against her on March 20, 2013. (Doc. 77, p. 6). 

She next had a pre-disciplinary conference with the highest ranking individuals at 

Phoenix College, President Anna Solley and Vice President, Cassandra Kakar on April 

3, 2013. (Doc. 77, pp. 6-7). Plaintiff further had an in person meeting with Vice 

Chancellor of Human Resources, Jim Bowers where she received a Statement of 

Charges against her – which included a charge of insubordination. (Doc. 77, p. 7). And 

on November 18, 2013, she received a full-day evidentiary hearing before a Hearing 

Committee comprised of her peers. (Doc. 77, p. 8). Finally, despite all of these 

elaborate procedures afforded to Plaintiff, she further received numerous opportunities to 

be heard in front of the MCCCD Governing Board.1 (Doc. 77, p. 9).

 

1 Specifically, Plaintiff’s attorney submitted a nine page legal brief to the MCCCD 

Governing Board outlining her arguments that “a fourteen-month suspension is the 

economic equivalent of a dismissal.” (Doc. 77, p. 9) Plaintiff also submitted at least four 

letters to the Governing Board asserting the same argument. Id. Plaintiff and her 

counsel each separately appeared before the Governing Board in open session and 

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But despite all of the comprehensive procedures provided to her, Plaintiff alleged 

in her Complaint (and continued to maintain throughout litigation) that she was denied 

the very due process that she was afforded. Consequently, the Court concluded that 

Plaintiff’s Due Process claim is “elusive” and “bizarre,” and further concluded that “[i]t 

may seem strange and even bizarre that the District’s rich and elaborate procedures for 

dismissal and suspension would nevertheless fall short of federal constitutional 

minimums of fairness.” (Doc. 91 at 3). Further, Plaintiff “d[id] not identify any 

additional procedure she could be due under federal procedural law.” (Doc. 91 at 14). In 

other words, Plaintiff’s belief that Defendants denied her due process “[was] objectively 

unreasonable in light of her own knowledge of essentially all the primary facts necessary 

to support such allegations.” Watson at 1002. “That is enough to satisfy the 

Christiansburg standard.” Id. Accordingly, Defendants are entitled to an award of 

attorneys’ fees in their favor.

3. Plaintiff Pursued Two Separate Claims Alleging A Deprivation Of A 

Liberty Interest But Never Identified A Cognizable Liberty Interest

and Ultimately Abandoned Her Liberty Interest Claims After Two 

Years of Discovery and Litigation Fees.

As the Court further noted in its Order granting complete summary judgment in 

Defendants’ favor, Plaintiff wholly abandoned her two liberty interest claims when faced 

with Defendants’ summary judgment motion by stating that she “concedes the causes of 

action in her Amended Complaint alleging violation of her liberty interest.” (Doc. 91 at 

3; Doc. 79 at 13). In other words, despite have no legal or factual basis for asserting her 

liberty interest claims against Defendants, Plaintiff inexplicably forced MCCCD to 

 

argued that her suspension was improper and “the functional equivalent of a termination 

from the district.” And if that were not enough, Plaintiff also had two other individuals 

separately appear on her behalf before the Governing Board to advocate for the reversal 

of her suspension. Id.

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conduct discovery and defend against these claims for more than two years only to later 

abandon those claims by way of a single sentence in response to Defendants’ motion for 

summary judgment. (Doc. 91 at 3) Given Plaintiff’s eleventh hour abandonment of her 

liberty interest claims, Defendants were still left with the full expense of defending them.

And even assuming, arguendo, that Plaintiff was somehow not aware of the baseless 

nature of her liberty interest claims at the time she filed her complaint, Plaintiff was 

certainly obligated to dismiss these claims once she became aware of their frivolous 

nature. Plaintiff did not, and Defendants should not, be forced to bear the burden of 

legal fees incurred as a result of defending against these claims. 

4. Plaintiff Improperly Attempted To Assert An Additional Groundless

Claim That Was Never Previously Disclosed For the First Time In 

Response to Defendants’ Motion for Summary Judgment.

The Court further found that Plaintiff’s attempt to raise an additional claim at 

summary judgment was improper, and even so, that the claim completely lacked merit. 

(Doc 91 at 3-4, 15-16). Specifically, Plaintiff contended for the first time at summary 

judgment that Defendant Glasper unconstitutionally occupied both a partisan and a 

judicial role in Plaintiff’s disciplinary case. Although the Court found that Plaintiff’s 

“[f]ailure to plead bars [the claim],” the Court still found that “[Plaintiff]’s challenge of 

bias . . . factually groundless[] and legally erroneous.” (Doc. 91 at 15-16). Defendants 

incurred substantial expense in responding to this claim asserted by Plaintiff at the 

summary judgment stage and should be reimbursed accordingly. 

5. Plaintiff’s Claim For Declaratory Judgment Was Baseless and As 

The Court Noted During Oral Argument, It Would Have Been An 

Abuse of Discretion to Award It.

Plaintiff further sought declaratory judgment on an issue which is irrelevant to her 

due process claims. The Court correctly held that it “need not decide whether [Plaintiff] 

actually violated copyright law” and that “[w]hat matters is the [Defendants] had a goodfaith basis for adopting a prophylactic order.” (Doc. 91 at 17). The Court further ruled 

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during oral argument that it would have been an abuse of direction to award declaratory 

relief. Although the Court dismissed this claim, Defendants incurred substantial expense 

needlessly defending it.

C. The Amount Of Attorneys’ Fees Requested By MCCCD Is 

Reasonable.

Local Rule of Civil Procedure 54.2(c)(3) sets forth a variety of factors that the 

Court should take into consideration when deciding the reasonableness of an attorneys’

fees request. The factors that have the largest bearing on this case are “the time and 

labor required of counsel” and the reasonableness of the rates charged by defense 

counsel.

Here, defense counsel was required to expend a significant amount of time 

defending against Plaintiff’s meritless claims. Examples of the time and effort required 

of counsel include, but are not limited to: multiple communications with Plaintiff’s

counsel in an attempt to persuade Plaintiff to dismiss the lawsuit, extensive document 

review, responding to Plaintiff’s voluminous written discovery requests, participation in 

more than five days of deposition testimony – including Plaintiff’s own two-day 

deposition, preparation of Defendant’s motion for summary judgment, responding to 

Plaintiff’s cross-motion for summary judgment, and preparation for and participation in 

court hearings.2

Despite the significant amount of time that defense counsel was forced to expend 

in the defense of this case, MCCCD is not seeking recovery of all of its attorneys’ fees 

and non-taxable costs against Plaintiff. Rather, MCCCD seeks an award of attorneys’

fees and non-taxable costs in the total amount of $110,000.00 (the “Requested 

Amount”). The Requested Amount is less than one half of the amount of fees MCCCD 

incurred and actually paid to its defense lawyers in this action. The Requested Amount 

 

2 To the extent that Plaintiff contends that MCCCD’s request for attorneys’ fees is 

somehow unreasonable, fairness dictates that Plaintiff must disclose with supporting 

documentation the amount of fees that she expended in this litigation as well as the 

billing rates of his counsel.

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represents a voluntary reduction of fees sought and does not represent a credit for the 

elimination of unnecessary, duplicative or excessive time. Nor does it represent the 

deletion of certain categories of billing entries. Rather, the voluntary reduction and the 

Requested Amount reflects MCCCD’s awareness and recognition of the fact that the 

Court must balance the amount of fees which it should be awarded to a prevailing 

defendant against the chilling effect on the vindication of employee rights. To make this 

calculation and balancing of factors easier for the Court MCCCD is, on its own 

initiative, seeking less than half of the fees MCCCD incurred and actually paid. 

Although it would be entirely reasonable for MCCCD to seek recovery of all of its 

attorneys’ fees and non-taxable costs against Plaintiff, the fact that MCCCD has 

voluntarily reduced the amount of fees it seeks by more than 50% speaks strongly to the 

reasonableness of the fee request. 

Moreover, the hourly rates charged by MCCCD’s counsel are completely 

reasonable and consistent with the prevailing rates in the local market. Here, Defense 

counsel is seeking recovery of its attorneys’ fees at a rate of $345/hour for partner 

Pavneet Singh Uppal, $325/hour for partner Shayna H. Balch, and $100/hour for 

paralegal Denise Karpa. These rates are reasonable and generally in accordance with the 

rates charges by other lawyers in the community with similar experience and education. 

By way of example, just two years ago Plaintiff’s own prior counsel, Tod Schleier (who 

drafted and filed the Complaint in this case), filed a fee application in an unrelated 

employment case seeking recovery of attorneys’ fees incurred from 2010 through 2012 

at an hourly rate of $475/hour for himself, $400/hour for his brother, Bradley Schleier, 

and $150/hour for his paralegal. Exhibit A (Affidavit of Shayna H. Balch, Exhibit 1). 

Accordingly, the much lower hourly rates charged by Defense counsel are clearly 

reasonable – especially when inflation and intervening rate increases over the past five 

years are taken into consideration. 

In addition, the Arizona Court of Appeals opined on the issue of reasonableness 

of attorneys’ fees more than 30 years ago in Schweiger v. China Doll Restaurant, Inc., 

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138 Ariz. 183, 187-88, 673 P.2d 927, 931-32 (1983). In Schweiger, the Arizona Court of 

Appeals held that “in corporate and commercial litigation between fee-paying clients, 

there is no need to determine the reasonable hourly rate prevailing in the community for 

similar work because the rate charged by the lawyer to the client is the best indication of 

what is reasonable under the circumstances.” However, even if the community standard 

were relevant, in a case decided more than 30 years ago the court held that an hourly rate 

of $250/hour for partners and $75/hour for paralegals was reasonable in the Phoenix 

market. Marvin Johnson, P.C. v. Shoen, 888 F. Supp. 1009, 1020-21 (D. Ariz. 1995). In 

the intervening more than three decades, the inflation rate and intervening increase in 

billing rates clearly justifies the rates charged by Defense counsel in this matter.

D. Defendants Should Be Awarded Their Fees Incurred In Preparing 

This Motion.

Defendants should also be awarded their reasonable attorneys’ fees incurred in 

preparing this motion. Defendants also incurred fees and expenses by bringing this 

motion. Defendants’ entitlement to these fees and costs are a matter of sound judicial 

discretion supported by relevant case law. See Camacho v. Bridgeport Fin. Inc., 523 

F.3d 973, 981 (9th Cir. 2008) (“In statutory fee cases, federal courts, including our own, 

have uniformly held that time spent in establishing the entitlement to and amount of the 

fee is compensable.”); In re Nucorp Energy, Inc., 764 F.2d 655, 659–60 (9th Cir. 1985) 

(fee awards under § 1988 to include fees generated by the motion). Commc’ns Workers 

of Am. v. Ill. Bell Telephone Co., 553 F. Supp. 144, 147 (N.D. Ill. 1982) (“Denying 

attorneys’ fees for the time spent obtaining them might decrease the value of a fee award 

by making attorneys engage in uncompensated litigation to obtain their fee.”) 

Accordingly, MCCCD respectfully requests the Court to compensate MCCCD for 12

hours of time spent in preparing this motion at a rate of $325 per hour ($3,900.00).

IV. CONCLUSION

For the above and foregoing reasons, Defendants respectfully request an award of 

attorneys’ fees and non-taxable costs against Plaintiff in the total amount of 

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$110,000.00. Defendants also seek an additional $3,900.00 for attorneys’ fees in 

preparation of this motion.

RESPECTFULLY SUBMITTED this 15th day of November 2017.

FISHER & PHILLIPS LLP

By s/ Shayna H. Balch

Pavneet Singh Uppal

Shayna H. Balch

Alanna R. Brook

3200 N. Central Avenue, Suite 805

Phoenix, Arizona 85012-2407

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on November 15, 2017, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrant(s):

Edmundo P. Robaina

Thomas T. Griffin

ROBAINA & KRESIN PLLC

5343 North 16th Street, Suite 200

Phoenix, Arizona 85016

Attorneys for Plaintiff

 s/ Michelle C. Colwell

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