HABTEGIORGIS v. OIC OF WASHINGTON

Full title: DAWIT HABTEGIORGIS, a married individual, Plaintiff, v. OIC OF WASHINGTON…

Court: United States District Court, E.D. Washington

Date published: Apr 9, 2009

NO. CV-08-3077-RHW (E.D. Wash. Apr. 9, 2009)

Opinion

NO. CV-08-3077-RHW.

April 9, 2009

ORDER GRANTING MOTIONS TO DISMISS; NOTICE OF VOLUNTARY DISMISSAL

ROBERT WHALEY, District Judge

Before the Court are Plaintiff's Notice of Voluntary Dismissal Without Prejudice of Defendants Beuchamp, Beyene, and OIC of America, Inc. (Ct. Rec. 17); Defendant Beyene's Motion to Dimiss — FRCP 12(b)(6), and for Attorneys Fees (Ct. Rec. 4); Defendant Beuchamp's Motion to Dismiss (Ct. Rec. 13); and Defendant OIC of America's Motion to Dismiss (Ct. Rec. 15). The motions were heard without oral argument.

The parties are in agreement that Defendants Beuchamp, Beyene, and OIC of America, Inc. should be dismissed. The question is whether Defendant Beyene is entitled to attorneys' fees.

Defendant Beyene relied on 42 U.S.C. § 2000e-5(k) and 28 U.S.C. § 1927 as authority for this Court to grant attorneys fees. Section 2000e-5(k) permits the Court to award attorneys' fees to successful defendants in Title VII actions where the suit is "frivolous, unreasonable, or without foundation." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). Proof that a plaintiff's case is frivolous, unreasonable, or groundless is not possible without a judicial determination of the plaintiff's case on the merits. Marquart v. Lodge 837, Intern. Ass'n of Machinists and Aerospace, 26 F.3d 842, 852 (8^th Cir. 1994) (declining to award attorneys fees where plaintiff voluntarily withdrew her complaint prior to a judicial determination on the merits). Defendant Beyene is not a prevailing party and the Court declines to exercise its discretion to award attorneys' fees. Additionally, section 1927 requires a finding of recklessness or bad faith. See In re Keegan Mgmt. Co., Secs. Litig., 78 F.3d 431, 436 (9^th Cir. 1996). The record does not support a finding of recklessness or bad faith, rather it suggests negligence.

Accordingly, IT IS HEREBY ORDERED:

1. Defendant Beyene's Motion to Dimiss — FRCP 12(b)(6), and for Attorneys Fees (Ct. Rec. 4) is GRANTED, in part, and DENIED, in part.

2. Defendant Beuchamp's Motion to Dismiss (Ct. Rec. 13) is GRANTED.

3. Defendant OIC of America's Motion to Dismiss (Ct. Rec. 15) is GRANTED.

4. The claims against Defendant Beyene, Defendant Beuchamp and Defendant OIC are dismissed, without prejudice.

IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward copies to counsel.