United States District Court, N.D. Mississippi, Aberdeen Division
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE.
cause comes before the court upon the defendant Scott
Farrell's motion for attorney's fees and costs. Upon
due consideration of the motion, response, exhibits, and
applicable authority, the court finds that the motion is not
well taken and should be denied.
plaintiff, Angela Moody, repeatedly sent harassing email and
social media messages to her ex-husband, defendant Scott
Farrell. Farrell complained to the police, and Moody was
arrested for felony cyberstalking, a charge that was later
dropped. Moody then brought this Section 1983 action against
Farrell, Lowndes County, and the arresting officer, alleging
that her First and Fourth Amendment rights had been violated.
court granted the defendants' motion for summary judgment
and dismissed this case on September 23, 2016, finding, inter
alia, that Farrell was not a “state actor” for
purposes of Section 1983 and that probable cause existed for
Moody's arrest. Moody v. Lowndes County, Miss.,
No. 1:14CV197-NBB-DAS, 2016 WL 5363461 (N.D. Miss. Sept. 23,
2016). The Fifth Circuit subsequently affirmed this
court's ruling through published opinion. Moody v.
Farrell, 868 F.3d 348, 2017 WL 3530156 (5th Cir. 2017).
Farrell now seeks attorney's fees and costs under 42
U.S.C. § 1988(b) and the Mississippi Litigation
Accountability Act, Miss. Code Ann. § 11-55-5(1).
Fox v. Vice, 563 U.S. 826 (2011), sets forth the
standard with which courts are to examine requests for
attorney's fees under Section 1988. According to the
Supreme Court, Congress, in enacting Section 1988, sought
“to protect defendants from burdensome litigation
having no legal or factual basis.” Id.
(quoting Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 420 (1978)). Section 1988 therefore
“authorizes a district court to award attorney's
fees to a defendant ‘upon a finding that the
plaintiff's action was frivolous, unreasonable, or
without foundation.'” Id. (quoting
Christiansburg, 434 U.S. at 421). “A suit is
frivolous if it is ‘so lacking in arguable merit as to
be groundless or without foundation....'”
Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th
Cir. 1999) (quoting Piemer v. Parsons-Gilbane, 713
F.2d 1127, 1140-41 (5th Cir. 1983)).
the Mississippi Litigation Accountability Act provides for
attorney's fees to a prevailing party when an attorney or
party brings an action or asserts claims or defenses that are
“without substantial justification” or
“interposed for delay or harassment....” Miss.
Code Ann. § 11-55-5(1). “[A] claim is without
substantial justification when it is ‘frivolous,
groundless in fact or in law, or vexatious, as determined by
the court.'” Scruggs v. Saterfiel, 693
So.2d 924, 927 (Miss. 1997) (quoting Miss. Code Ann. §
11-55-3(a)). A claim is frivolous “only when,
objectively speaking, the pleader or movant has no hope of
success.” Id. (citing Stevens v.
Lake, 615 So.2d 1177, 1184 (Miss. 1993)).
court does not find Moody's case “so lacking in
arguable merit as to be groundless or without
foundation”; nor does the court find that objectively
speaking the plaintiff had no hope of success. The case is
therefore not frivolous, and attorney's fees are not
warranted under Section 1988 or the Mississippi Litigation
unsuccessful case is not the same thing as a frivolous case.
Plaintiff's counsel put forth well reasoned and well
articulated, cogent arguments in support of the
plaintiff's claims but was simply unsuccessful. The
current case law in this circuit and the facts applicable to
it were not in the plaintiff's favor, but there was an
arguable and reasonable basis for her position, and that
basis precludes a finding of frivolousness. Further, the
Fifth Circuit made no indication in its published
opinion affirming this court's ruling that it found
Moody's claims to be frivolous; and, as the plaintiff
argues, the appellate court's choice to publish the
opinion, the fact that it granted oral argument in this case,
and the fact that it assessed half the costs against the
defendant are all indicative of the fact that the court did
not consider the case frivolous.
a defendant “is not entitled to any fees arising from .
. . non-frivolous charges, ”Defendant Farrell's
motion for attorney's fees and costs is not well taken.
Accordingly, it is ORDERED AND ADJUDGED that
the defendant's motion for attorney's fees and costs
is hereby DENIED.
Fox, 563 U.S. at 834.