Cupp v. Smith

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 RONALD CUPP, Case No. 20-cv-03456-PJH 8 Plaintiff,

9 v. ORDER OF DISMISSAL WITH PREJUDICE 10 ANDREW SMITH, Re: Dkt. No. 143 11 Defendant. 12

13 14 Before the court is the parties’ stipulation to dismiss this lawsuit with prejudice 15 under Federal Rule of Civil Procedure 41(a)(1)(ii). This case has been thoroughly 16 litigated, and trial is set to begin in less than one week, on April 3, 2023. The sole 17 remaining claim is brought under Title 42 U.S.C. § 1983 for alleged breach of plaintiff’s 18 Fourth Amendment rights based on defendant Andrew Smith’s February 15, 2019, 19 inspection/search of the property at 4640 Arlington Avenue in Santa Rosa, California. 20 Plaintiff has made clear that the claim is against Smith in both his personal and official 21 capacity. Dkt. 1, Dkt. 38 (SAC ¶ 8), Dkt. 129. In light of the parties’ agreement, the court 22 ORDERS that this case is hereby DISMISSED WITH PREJUDICE as to all claims, 23 causes of action, and parties, including against Smith in his personal and official capacity. 24 The parties’ stipulation states, “Defendant reserves the right to request an award 25 of fees and/or costs as allowed by the Court; Plaintiff reserves the right to oppose such 26 request.” Dkt. 43 at 1. Defendant, as the prevailing party, may submit a bill of costs in 27 accordance with Federal Rule of Civil Procedure 54 and Civil Local Rule 54. Plaintiff may 1 On the other hand, attorneys’ fees may be awarded against an unsuccessful 2 § 1983 plaintiff only “in exceptional circumstances” where the court finds “the plaintiff’s 3 action was frivolous, unreasonable, or without foundation.” Harris v. Maricopa Cnty. 4 Superior Ct., 631 F.3d 963, 968 (9th Cir. 2011) (cleaned up); see also 42 U.S.C. 5 § 1988(b). Defendant may certainly file a fee petition in light of this authority. However, 6 given the survival of the plaintiff’s § 1983 claim to this stage of litigation, the court would 7 be hard-pressed to find that an award of attorneys’ fees would be appropriate under this 8 standard. 9 IT IS SO ORDERED. 10 Dated: March 30, 2023 11 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27