Anderson v. Armour

• Court: District Court, D. Arizona
• Decided: October 25, 2021
• Docket: 2:16-cv-03563
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 JeAnna Anderson, No. CV-16-03563-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Anthony Armour, Jr., et al.,

13 Defendants. 14 15 Defendants Anthony Armour, Jr. and the City of Phoenix filed a Motion for 16 Attorneys’ Fees and Costs (Doc. 235, Mot.), to which Plaintiff JeAnna Anderson filed a 17 Response (Doc. 243, Resp.) and in support of which Defendants filed a Reply (Doc. 246, 18 Rpl.). Defendants also filed two Supplements to their Motion for fees at Docket Nos. 247 19 and 248.1 No party requested oral argument and the Court concludes such argument would 20 not assist it in the decisions in any event. LRCiv 7.2(f). 21 22 23 1 Also before the Court was Defendants’ Motion to Strike Plaintiff's Response to their Motion for Attorneys’ Fees (Doc. 245), to which Plaintiff filed a Response in 24 opposition combined with a Motion for Leave to File Untimely Response (Doc. 249). Defendants filed a Reply in support of their Motion to Strike, combined with a Response 25 to Plaintiff’s Motion for Leave to File Untimely Response (Doc. 253), and Plaintiff filed a Reply in support of her Motion for Leave to File Untimely Response (Doc. 254). The Court 26 denied Defendants’ Motion to Strike and denied as moot Plaintiff’s Alternative Motion for Leave in a brief September 30, 2021 Order (Doc. 257) indicating it would address its 27 rulings here. The Court finds excusable neglect existed in Plaintiff’s filing her Response to the Motion for Fees four days late, and an absence of any unfair prejudice to Defendants 28 in allowing the late filing. And because the Court denied the Motion to Strike, Plaintiff’s Alternative Motion was moot and denied as such. 1 I. Background and Procedure 2 Plaintiff’s original complaint in this matter alleged eight claims against Defendants: 3 1) excessive force in violation of the Fourth Amendment pursuant to 42 U.S.C § 1983; 2) 4 malicious prosecution in violation of the Eight Amendment pursuant to 42 U.S.C § 1983; 5 3) illegal search in violation of the Fourth Amendment pursuant to 42 U.S.C § 1983; 4) 6 state law assault/battery; 5) state law abuse of process; 6) state law malicious prosecution; 7 7) state law negligence as against both Defendants and negligent training and supervision 8 as against the City of Phoenix only; and 8) state law intentional infliction of emotional 9 distress (IIED). (Doc. 1, Compl.) Upon Defendants’ motion, the Court dismissed all three 10 1983 claims and the state law negligent training and supervision claim as against the City 11 of Phoenix, and the 1983 claim for malicious prosecution claim as against Armour. (Doc. 12 25.) In her First Amended Complaint, Plaintiff maintained all surviving claims and revived 13 her 1983 claim for malicious prosecution as against Defendant Armour. (Doc. 28, FAC.) 14 After Defendants filed a motion for partial summary judgment, Plaintiff agreed to 15 voluntarily dismiss both the federal Section 1983 and state law claims for malicious 16 prosecution in the FAC, and the Court granted summary judgment to Defendants on the 17 Section 1983 illegal search claim, the state law claim for abuse of process, and the state 18 law claim for negligence, denying the remainder of Defendants’ motion. (Doc. 88.) Thus, 19 as of January 23, 2019, only Plaintiff’s 1983 claim for excessive force as against Defendant 20 Armour only and her state law claims for assault/battery and IIED as against both 21 Defendants survived to trial. Trial commenced 21 months later in October 2020, after 22 which the jury returned a verdict for Defendants on the three remaining claims. (Doc. 226.) 23 Defendants thereafter filed the instant Motion. 24 II. Analysis 25 Defendants seek a total of $244,650.24 in attorneys’ fees and costs.2 They ground 26 their fee Motion on three separate provisions of law: 1) A.R.S. § 13-420, which provides 27 28 2 This includes $11,721.30 in taxable costs and $232,928.94 in attorneys’ fees. (Docs. 235, 247, 248.) 1 for defense recovery of fees in a civil action based on conduct justified under Chapter Four 2 of the Arizona Criminal Code; 2) A.R.S. § 12-349, which provides for an award of 3 reasonable attorneys’ fees against any party who, in relevant part, brings a claim without 4 substantial justification or unreasonably expands the proceeding; and or 3) 28 U.S.C. 5 § 1927, which provides the Court with authority to award reasonable attorneys’ fees against 6 a party who unreasonably and vexatiously multiplies proceedings.3 (Mot. at 5, 7, 11.) The 7 Court analyzes each of these provisions separately. 8 A. Attorneys’ Fees Under Arizona Revised Statutes § 13-420 9 Section 13-420 of the Arizona Revised Statutes provides in relevant part that 10 [t]he court shall award reasonable attorney fees [to] a defendant in the defense of any civil action based on conduct 11 otherwise justified pursuant to this chapter if the defendant 12 prevails in the civil action. 13 A.R.S. § 13-420 (2006). With respect to the state law assault/battery claim, Defendants 14 requested and received a jury instruction asking whether, if the jury found Defendant 15 Armour used physical force on Plaintiff, it also found that use of force was justified. (Doc. 16 226 at 2.) The jury found the use of physical force was justified, and thus found for 17 Defendants on the claim. In light of the jury’s express finding of justification, Defendants 18 urge they have met the requirements of Section 13-420 and are entitled to the attorneys’ 19 fees they incurred in the defense of the assault/battery claim. They also assert that because 20 the other two claims surviving to trial—the federal Section 1983 civil rights excessive force 21 claim and the state law IIED claim 22 were based on the same set of facts as the claim for assault and battery, there is no way to separate out the attorneys fees 23 incurred to defend the federal claim or the intentional infliction 24 of emotional distress claim. Therefore, under this statute, defendants are entitled to recover all of the attorneys fees and 25 non-taxable costs they incurred in defending this case, unless 26

27 3 Defendants cite as alternate federal authority for such an award the Court’s 28 inherent authority to address actions brought or maintained in bad faith, as recognized in, for example, Roadway Exp., Inc. v. Piper, 447 U.S. 752, 765 (1980). (Mot. at 11.) 1 those attorneys’ fees and costs were specific solely to the federal claim. 2 3 (Mot. at 5-6.) 4 Plaintiff responds that 42 U.S.C. § 1988, the statute governing the award of attorneys’ 5 fees in federal civil rights actions, preempts Section 13-420 and any award of fees under it 6 in this matter when federal and state common law claims overlap. (Resp. at 4-6.) Defendants 7 urge there is no preemption, as Plaintiff was the master of her Complaint and could have 8 foregone her state tort claims, but chose to add them. (Rpl. at 7.) 9 Federal preemption may be either express or implied. Gade v. Nat’l Solid Wastes 10 Mgmt. Ass’n, 505 U.S. 88, 98 (1992). As Section 1988 provides no express preemption 11 language toward state attorneys’ fee statutes, the Court looks to the law governing implied 12 preemption, of which there are two varieties: field preemption and conflict preemption. Id. 13 Field preemption exists where “Congress intends federal law to ‘occupy the field.’” Crosby 14 v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). Conflict preemption, on the 15 other hand, exists when “it is impossible for a private party to comply with both state and 16 federal law” or where state law “stands as an obstacle to the accomplishment and execution 17 of the full purposes and objectives of Congress.” Id. at 372-73 (cleaned up). The Court here 18 analyzes for conflict preemption. 19 42 U.S.C. § 1988 allows attorneys’ fees to a prevailing defendant in a civil rights 20 action under Section 1983 only if the plaintiff’s original claims were “frivolous, 21 unreasonable or without foundation.” Harris v. Maricopa County Sup. Ct., 631 F.3d 963, 22 968 (9th Cir. 2010). Conversely, as set forth above, Arizona’s Section 13-420 mandates an 23 award of fees to a prevailing defendant whose actions were found to be justified. In the 24 instant case, then, based on the identical facts, the state law would require Plaintiff to pay 25 attorneys’ fees on state law claims encompassing the identical conduct underlying federal 26 claims for which attorneys’ fees are prohibited by the statute’s limitation. And the reason 27 for that limitation is highly germane here: 28 1 Our laws encourage individuals to seek relief for violations of their civil rights, and allow a defendant to recover fees and 2 costs from the plaintiff in a civil rights case only “in 3 exceptional circumstances” in which the plaintiff's claims are “frivolous, unreasonable or without foundation.” . . . Congress 4 and the courts have long recognized that creating broad 5 compliance with our civil rights laws, a policy of the “highest priority,” requires that private individuals bring their civil 6 rights grievances to court. [] Even when unsuccessful, such 7 suits provide an important outlet for resolving grievances in an orderly manner and achieving nonviolent resolutions of highly 8 controversial, and often inflammatory, disputes. Guaranteeing 9 individuals an opportunity to be heard in court instead of leaving them only with self-help as a means of remedying 10 perceived injustices creates respect for law and ameliorates the 11 injury that individuals feel when they believe that they have been wronged because society views them as inferior. Our 12 system of awarding attorneys fees and civil rights cases is in 13 large part dedicated “to encouraging individuals injured by... discrimination to seek judicial relief.” ... this policy was 14 adopted expressly in order to avoid discouraging civil rights plaintiffs from bringing suits, and thus “undercutting the 15 efforts of Congress to promote the vigorous enforcement of ” 16 the civil rights laws. 17 Harris, 631 F.3d at 968, 971 (holding that Arizona law prohibits requiring a plaintiff to 18 pay fees that a prevailing defendant incurred in defending against a nonfrivolous civil rights 19 claim). The Court finds that application of A.R.S. § 13-420 and its mandate of an award of 20 attorneys’ fees to a prevailing defendant in this case, for successfully defending a non- 21 frivolous civil rights claim, would stand as an obstacle to the accomplishment and 22 execution of the full purposes and objectives of Congress in enacting 42 U.S.C. § 1983 et 23 seq. In so holding, the Court finds persuasive value in Longoria v. Pinal County, 2:15-CV- 24 00043-SRB, 2016 WL 10637087 at *2 (October 7, 2016), wherein another member of this 25 Court faced the identical issue and reached the same result.4

26 4 Defendant cites two other cases in this district—Mendez v. City of Scottsdale, CV- 27 12-00285-SMM, 2015 WL 13654011 (February 27, 2015) and Smith v. City of Chandler, 12-CV-02391-FJM, 2017 WL 6502748 (August 9, 2017), both of which allowed an award 28 of attorneys’ fees under ARS § 13-420 where a defendant prevailed against both federal civil rights claims under Section 1983 and state tort claims. And defendant urges this Court 1 The Court thus concludes that Defendants are not entitled to attorneys’ fees under 2 Section 13-420 absent a showing that the fees at issue were not incurred to defend the 3 federal claims. This Defendants cannot show by their own admission. (Mot. at 5-6 4 (“because the federal claim for excessive force and the state law claim for intentional 5 infliction of emotional distress were based on the same set of facts as the claim for assault 6 and battery, there is no way to separate out the attorneys’ fees incurred to defend the federal 7 claim or the intentional infliction of emotional distress claim.”).) This is true of all the state 8 law claims Plaintiff brought in this matter. Core to the federal civil rights claims and to the 9 state law claims are the same actions alleged on Defendant Armour’s part: the removal of 10 Plaintiff from her car by force; the physical contact during the search of her person; placing 11 her under arrest; and initiation of charges against her. Defendant is not entitled to attorneys’ 12 fees under section 13-420. 13 B. Attorneys’ Fees Under Arizona Revised Statutes § 12-349 14 Alternatively, Defendants assert they are entitled to attorneys’ fees pursuant to 15 A.R.S. § 12-349, which provides in relevant part that

16 . . . in any civil action commenced . . . in a court of record of 17 this state, the court shall assess reasonable attorney fees, expenses and, at the court’s discretion, double damages not to 18 exceed $5000 against an attorney or party . . . if the attorney or 19 party . . . [b]rings . . . [a] claim without substantial justification [or] unreasonably expands or delays the proceeding. 20 21 should discount the ruling in Longoria because it is unpublished. In so arguing, Defendant 22 overlooks that Mendez and Smith are similarly unpublished. Moreover, whether any of the district court cases the parties raise to the Court are published or not is irrelevant—this 23 Court considers other district court cases, which are not binding precedent, solely for the persuasive value of their reasoning. In that vein, Mendez is in any event of little assistance, 24 as the court there was never presented with, and therefore did not consider, the issue of preemption in an uncontested fee motion. Finally, the court in Smith does not appear to 25 have considered Sees v. KTUC, Inc., in which the Arizona Court of Appeals, in holding that an unsuccessful plaintiff bringing civil rights claims and state tort claims may not be 26 assessed attorneys’ fees under Arizona statute where her claims were not frivolous, ruled that “[f]ederal policy disfavors such an award under [federal civil rights laws] because such 27 awards undercut efforts to enforce the Congressional intent that discrimination be eradicated. We believe that state policy should be equally protective.” 148 Ariz. 366, 369 28 (App. 1985). The Court concludes Longoria presents by far the most persuasive authority on the issue before it. 1 A.R.S. § 12-349(A)(1-3)(1986). The Arizona Legislature has defined a claim brought 2 “without substantial justification” as one that “constitutes harassment, is groundless and is 3 not made in good faith.” A.R.S. § 12-349(F) (1986). For purposes of this statute, a claim 4 is groundless or frivolous “if the proponent can present no rational argument based upon 5 the evidence or law in support” of it. See, e.g., Rogone v. Correia, 335 P.2d 1122, 1129 6 (Ariz. Ct. App. 2014)(cleaned up). “An objective standard may be utilized to determine 7 groundlessness, but a subjective standard determines . . . bad faith.” Phoenix Newspapers, 8 Inc., v. Dep’t of Corrs., 934 P.2d 801, 808 (Ariz. Ct. App. 1997). 9 As Defendants expressly seek fees under Section 12-349(A) for five of the eight 10 claims brought,5 the Court analyzes each of them under the above standard. It notes as a 11 preliminary matter that unlike A.R.S. § 13-420, Section 12-349 does not raise a federal 12 preemption issue, as the federal civil rights statutory scheme of 42 U.S.C. §§ 1983 and 13 1988 contemplate and allow for attorneys’ fees against an unsuccessful plaintiff where the 14 claims were “frivolous, unreasonable or without foundation.” Harris, 631 F.3d at 968. Thus 15 an award of fees under Section 12-349 where Defendants showed a claim or claims were 16 brought without substantial justification would not implicate conflict preemption. 17 1. Claim 5 - State Law Abuse of Process 18 Arizona law recognizes a tort claim for abuse of process where a plaintiff proves (1) 19 a willful act in the use of judicial process; (2) for an ulterior purpose not proper in the 20 regular conduct of the proceedings. Nienstedt v. Wetzel, 651 P.2d 876, 881 (Ariz. Ct. App. 21 1982). A plaintiff meets the second element by “showing that the process has been used 22 primarily to accomplish a purpose for which the process was not designed.” Id. In the 23 context of this tort, Arizona interprets “process” as encompassing “the entire range of 24 procedures incident to the litigation process.” Id. at 880.

25 5 In Section II.B.2 of their Motion addressing fees under Section 12-349, Defendants 26 state that “Plaintiff asserted groundless claims such as malicious prosecution, abuse of process, negligence and illegal search and seizure without any meritorious basis to do so.” 27 (Mot. at 8.) Defendants proceed to analyze only these claims for groundlessness. Defendants do not appear to seek fees under Section 12-349 for the three claims that went 28 to the jury—excessive force under Section 1983 (Claim 1) and the state law claims for assault/battery (Claim 4) and IIED (Claim 8). 1 Although the process may have been properly obtained or 2 issued . . . [i]t is the subsequent misuse which constitutes the 3 misconduct for which liability is imposed. However . . . there is no action for abuse of process when the defendant uses the 4 process for its authorized or intended purpose, even though 5 with bad intentions, or if there is an incidental motive of spite. 6 Morn v. City of Phoenix, 730 P.2d 873, 875 (Ariz. Ct. App. 1986) (cleaned up). 7 As the Court found in denying Defendants’ Motion to Dismiss the abuse of process 8 claim, Plaintiff 9 stated a claim for abuse of process sufficient to survive the 10 motion to dismiss stage. Her Complaint identifies the willful 11 act—causing plaintiff to be charged with a criminal offense— and the ulterior purpose in doing so—to discourage, dissuade 12 or procedurally preclude her from filing suit for excessive 13 force. 14 (Doc. 25 at 8.) Later, after discovery failed to yield evidence sufficient to sustain a 15 controverted issue of fact on these elements, the Court granted summary judgment for 16 Defendants on the claim, finding that 17 [e]ven if Armour had an ulterior motive in bringing the 18 resisting arrest charge against Anderson, merely bringing a 19 charge does not constitute abuse of process. See Joseph [v. Markowitz], 551 P.2d [571] at 575 (“abuse of process requires 20 some act beyond the initiation of a lawsuit”). Anderson has 21 presented no evidence that Armour was involved in the judicial process after her arrest and booking in the jail. 22 (Doc. 88 at 23.) The Court’s determination to dismiss the abuse of process claim based on 23 a lack of evidence of Defendant’s acts in furtherance of the prosecution after arresting and 24 booking Plaintiff could not be made until after Plaintiff had taken her discovery. The Court 25 finds no support for a subjective determination that Plaintiff acted in bad faith in bringing 26 or maintaining her abuse of process claim to summary judgment under these 27 circumstances; nor does it find support for an objective finding of groundlessness through 28 1 the pleading and discovery stage of this matter. It will deny attorneys’ fees on Claim 5 2 under Section 12-349. 3 2. Claims 2 and 6 – Malicious Prosecution 4 Arizona law prescribes six elements for the tort of malicious prosecution: 1) there 5 was a prosecution; 2) it terminated in favor of the plaintiff; 3) defendant was the prosecutor; 6 4) defendant was motivated by malice; 5) probable cause was lacking; and 6) the plaintiff 7 sustained damages. Overson v. Lynch, 317 P.2d 948, 949 (Ariz. 1957). While a malicious 8 prosecution action may be brought against one “who wrongfully caused the filing of the 9 charges,” Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002), if that 10 defendant “loses control over the case once the prosecution has been initiated, his 11 participation in the prosecution thereafter is not such as will subject him to liability.” Walsh 12 v. Eberlein, 560 P. 2d 1249, 1252 (Ariz. Ct. App. 1976 ). 13 Plaintiff alleged in the operative complaint that Defendant Armour initiated and or 14 took active part in the criminal prosecution against her; that the City of Phoenix voluntarily 15 dismissed that case against her; and that Defendant Armour acted with malice, in an effort 16 to discourage, dissuade, or procedurally preclude her from filing suit against him and or 17 the City of Phoenix for excessive force. (Doc. 1, Complaint ¶¶ 125-130; Doc. 28, FAC ¶¶ 18 133-137.) In denying Defendants’ Motion for Dismiss the malicious prosecution claims, 19 the Court found all elements were adequately pleaded, and noted that the only element 20 Defendants contested was that Defendant Armour was a “prosecutor” for purposes of 21 element 3. (Doc. 25 at 9-10.) After finding Plaintiff’s allegation that Defendant Armour 22 arrested her, caused her to be charged with resisting arrest and “took active part in the 23 criminal prosecution,” the Court allowed the claims to go forward, identifying for the 24 parties the question of fact that could not be determined before discovery on a motion to 25 dismiss and would be dispositive of whether the claims would survive summary judgment: 26 “whether Armour lost control of the prosecution at some point,” as outlined in Walsh, 27 supra. 28 1 Discovery on the malicious prosecution and other claims closed on May 4, 2018. 2 (Doc. 35.) On May 30, 2018, Defendants filed their Motion for Partial Summary Judgment, 3 seeking judgment on the malicious prosecution claims. (Doc. 70.) In her Response thereto, 4 Plaintiff conceded the claims. On these facts the Court cannot conclude Plaintiff acted in bad 5 faith in maintaining either malicious prosecution claim. The Court concluded she had 6 adequately pleaded a claim and identified the evidentiary predicate for survival of that claim 7 to trial. Plaintiff took her discovery, and when her counsel concluded their review of the 8 evidence gathered, surrendered the claims. While it would have been optimal for Plaintiff to 9 alert Defendants’ counsel of that surrender after discovery closed and before counsel devoted 10 some limited time to briefing the claims on summary judgment, Plaintiff’s actions were 11 reasonable and do not reflect bad faith. Nor was maintenance of the malicious prosecution 12 claims groundless through the discovery phase of the matter.6 The Court will deny attorneys’ 13 fees on Claims 2 and 6 under Section 12-349. 14 3. Claim 3 – Section 1983 Search 15 Plaintiff alleged in Claim 3 of the FAC that Armour violated her Fourth Amendment 16 rights when he accessed her cell phone and took two pictures with it while she was detained 17 without her permission, a warrant or a valid exception to the warrant requirement. (FAC 18 ¶¶ 111, 113.) The Court granted summary judgment on Claim 3, concluding that after 19 discovery, Plaintiff still “ha[d] not presented evidence, other than her belief, that Armour 20 is the person who took the photographs.” (Doc. 88 at 20.) But like the other claims for 21 which Defendants seek attorneys’ fees under Section 12-349, they seem to conflate a failed 22 claim with a groundless claim and one brought in bad faith. 23

24 6 Defendants argue in their instant Motion for Attorneys’ Fees that there was ample 25 evidence of probable cause to arrest Plaintiff from the outset of the case and thus no evidence of a lack of probable cause, and they “put Plaintiff and her counsel on notice” of 26 this fact early in the matter, first with their filing of the Partial Motion to Dismiss at Doc. 11.” (Mot. at 8-9.) The Court has reviewed the motion for partial dismissal and concludes 27 once again, just as it did in ruling upon same, that Defendants did not raise lack of probable cause in either section of their motion discussing Claims 2 or 6. Moreover, Plaintiff—and 28 as importantly, her counsel—were entitled to explore this issue in discovery rather than take Defendants’ word as conclusive. 1 By way of example, Defendants argued that Plaintiff’s Section 1983 search claim 2 “was groundless and should never have been brought because there was never any evidence 3 that Officer Armour searched Plaintiff’s cell phone following her arrest.” (Doc. 235 at 9- 4 10.) That is not accurate. There was at least some circumstantial evidence Armour had 5 accessed the phone. He was the arresting officer and seized it; moreover, he was the only 6 officer present at the time of arrest and subsequent seizure of Plaintiff’s phone and for some 7 time thereafter; he also was the only officer present with the phone when he processed her 8 in his patrol vehicle for an extended period in a convenience store parking lot after the 9 arrest and before transporting her for booking. Finally, on her phone were two photographs 10 taken at the arrest scene depicting police and emergency responders to it, none of whom 11 was Armour. While the Court concluded that this bare circumstantial evidence was 12 insufficient to allow the claim to go to a jury, it was enough to allow discovery to proceed, 13 especially in a circumstance where Defendants were uniquely in possession of all 14 information about what happened to the phone when it was out of Plaintiff’s possession, 15 and the universe of persons potentially with knowledge of those facts—the handful of 16 responders who were on scene after the arrest—could be and ultimately were interviewed 17 or deposed in numbers small enough to be proportional to the needs of the case. The Court 18 will not equate this claim supported by insufficient evidence with one that is frivolous, 19 groundless or brought in bad faith. It will deny attorneys’ fees on Claim 3 under Section 20 12-349. 21 4. Claim 7 – Negligence 22 To recover on a negligence claim in Arizona, a plaintiff must prove a duty requiring 23 the defendant to conform to a standard of care; a breach of that duty; a causal connection 24 between breach and injury; and resulting damages. Ryan v. Napier, 425 P.3d 230, 235 25 (Ariz. 2018). However, as the Court previously pointed out in this matter (Doc. 88 at 23), 26 the above standard only applies to negligence claims against a law enforcement officer that 27 is independent of the intentional use of physical force. Id. at 233. In her Amended 28 Complaint, Plaintiff alleged negligence in three separate acts by Armour: 1) his use of 1 “unreasonable and unnecessary force” against her; 2) his extralegal accessing of her 2 telephone; and 3) his causing her to be cited and prosecuted without probable cause. (Doc. 3 28, FAC ¶ 144.)7 Thus the Court measured only the second and third alleged acts against 4 this standard in determining whether a controverted issue of fact existed as to either of 5 them. 6 Like the malicious prosecution, abuse of process and illegal search claims, the Court 7 finds the negligence claim predicated on these two alleged acts was not groundless and 8 Plaintiff was entitled to conduct discovery to determine whether evidence supported it. And 9 when discovery closed and the Court found no such evidence, it dismissed the claim, as 10 occurs routinely with unsuccessful but non-frivolous claims. Nor does the Court find bad 11 faith in Plaintiff bringing her claim as to the latter two alleged acts. 12 Plaintiff’s negligence claim as predicated on the first act alleged of Armour—his 13 use of unreasonable and unnecessary force—ultimately stands in a similar posture. It is 14 now the law of Arizona that a plaintiff “cannot assert a negligence claim based solely on 15 an officer’s use of force.” Ryan, 425 P.3d at 233. After Ryan, Plaintiff’s negligence claim 16 as predicated on Armour’s alleged use of unreasonable and unnecessary force categorically 17 would fail as a matter of law and thus be groundless. But the Arizona Supreme Court 18 decided this matter of first impression in Ryan on August 23, 2018, after discovery closed, 19 Plaintiff already had filed her Response briefing on summary judgment and the matter was 20 pending before the Court. The Court will not find bad faith in this circumstance. It thus 21 will deny attorneys’ fees on Claim 7 under Section 12-349. 22 C. Fees Under 28 U.S.C. § 1927 and the Court’s Inherent Authority 23 “Any attorney or other person . . . who so multiplies the proceedings in any case 24 unreasonably and vexatiously may be required by the court to satisfy personally the excess 25 costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28

26 7 Defendants do not appear to seek fees under Section 12-349 for Plaintiff’s claim 27 of negligent training and supervision, which comprised Claim 7 in the original Complaint and was dismissed at Doc. 25. Defendants’ arguments in the instant Motion go only to the 28 “straight” negligence aspect of the claim as against Armour, and by respondeat superior, the City, that survived partial dismissal; thus the Court analyzes only that claim. 1 U.S.C. § 1927. A showing of bad faith is not required for sanctions under § 1927; a showing 2 of recklessness is sufficient. Fink v. Gomez, 255 F.3d 989, 993 (9th Cir. 2001). “For [§ 3 1927] sanctions to apply, if a filing is submitted recklessly, it must be frivolous, [or] if it is 4 not frivolous, it must be intended to harass.” In re Keegan Mgmt. Co., Sec. Lit., 78 F.3d 5 431, 436 (9th Cir. 1996). “[R]eckless nonfrivolous filings, without more, may not be 6 sanctioned.” Id. 7 The Court also possesses inherent authority to issue sanctions beyond the costs of 8 attorneys’ fees and expenses. B.K.B. v. Maui Police Dept., 27 F.3d 1091 (9th Cir. 1091). 9 Sanctionable conduct under this authority includes that “which abuses the judicial 10 process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). A court's exercise of its 11 inherent sanctioning power is appropriate when there has been “willful disobedience of [a] 12 court order ... or when the losing party has acted in bad faith, vexatiously, wantonly, or for 13 oppressive reasons....” Fink, 239 F.3d at 991 (cleaned up). In sum, “recklessness suffices 14 for § 1927, but bad faith is required for sanctions under the court's inherent power.” Fink, 15 239 F.3d at 993. 16 For the reasons stated at length and repeatedly supra, the Court does not find 17 Plaintiff or her counsel acted in bad faith or recklessly in maintaining this matter. To be 18 sure—and as Plaintiff’s counsel has acknowledged—the conduct of Plaintiff’s case 19 involved errors and failings. This constitutes negligence at most, not recklessness or bad 20 faith. The Court already has noted that in denying Defendants’ Motion for Partial 21 Dismissal, it found that Plaintiff had satisfied the legal standard to move those surviving 22 claims forward to and through discovery and to the next test at the dispositive motion stage. 23 No party has presented any information causing the Court to determine, in hindsight, that 24 its decisions were influenced by an action Plaintiff or her counsel took recklessly or in bad 25 faith. Nor does the Court find bad faith or recklessness in Plaintiff pressing her Claims 2, 26 3, 5, 6 and 7 thereafter through discovery and until the Court terminated them on summary 27 judgment. 28 1 In denying Defendants’ Motion for Summary Judgment as to the Section 1983 2 excessive force, state assault/battery and state IIED claims, the Court concluded there were 3 controverted issues of fact regarding each claim—that is, a jury would have to make a 4 credibility determination as to whether it believed Plaintiff Anderson or Defendant 5 Armour, and if the jury credited Plaintiff’s version of events, it could plausibly find for 6 Plaintiff on those claims. This is not to say any claim that survives summary judgment can 7 per se never be brought in “bad faith, vexatiously, wantonly or for oppressive reasons”— 8 the Court still must evaluate Plaintiff’s conduct according to the standards of Fink. But 9 here the Court readily concludes Plaintiff did not violate this standard regarding its pursuit 10 through trial of Claims 1, 4 and 8. 11 Contrary to Defendants’ argument elsewhere in briefing, the fact that Defendant 12 Armour possessed a lawful basis to stop Plaintiff, to remove her from her vehicle, to arrest 13 her and to search her incident to arrest would not absolve him of liability for excessive 14 force if the jury concluded he used more force than reasonably necessary to remove her 15 from her car, take her into custody or search her. Plaintiff testified that Defendant violently 16 removed her from her car, injured her in doing so, groped her breast and labia—the latter 17 under her clothing—and then violently threw her headlong onto the floor of his patrol 18 vehicle. She produced some photographic evidence to support her alleged injuries. Had the 19 jury credited Plaintiff’s version of events, and had it concluded any of those acts were more 20 than reasonably necessary to detain, arrest or search Plaintiff, it could have returned a 21 verdict for her on Claim 1. 22 Similarly, if the jury credited Plaintiff’s testimony that Defendant groped her breast 23 and labia incident to search or otherwise, it could have found for her on Claim 4. Finally, 24 If the jury credited Plaintiff’s testimony and photographs of alleged physical injuries and 25 her testimony about her mental anguish and residual distress, it could have plausibly found 26 for her on Claim 8. That the jury did not credit Plaintiff’s testimony on some or all of these 27 issues is not, as Defendants seem to argue, demonstrative of bad faith, vexatiousness, 28 wantonness or oppressiveness on her part in maintaining the three surviving claims. The Court rejects that circular argument. Claims 1, 4 and 8, though unsuccessful, were not 2|| brought in subjective bad faith or recklessly. Attorneys’ fees for them will not lie pursuant 3 || to either Section 1927 or the Court’s inherent authority. 4 For the foregoing reasons, 5 IT IS ORDERED denying Defendants’ Motion for Attorneys’ Fees and Costs 6|| (Doc. 235). 7 Dated this 25th day of October, 2021. CN

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