Fox v. Vice

647 F.3d 534, 2011 U.S. App. LEXIS 14844, 2011 WL 2859817

Opinion

PER CURIAM:

This court’s judgment at 594 F.3d 423, holding that attorney’s fees for defense of Fox’s frivolous claim were recoverable because they could not be separated from fees for defense of the continuing state claim, has been vacated by the Supreme Court, holding that the defendant may receive only the fees that would not have been paid but for the frivolous claim. Those fees that the defendant would have incurred to defend against the continuing state claim may not be recovered under 42 U.S.C. § 1988. Fox v. Vice, — U.S.-, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011).

Consequently, the district court’s judgment is reversed and the case is remanded to the district court for reconsideration.

REVERSED AND REMANDED.