Opinion
CV-00-313-ST.
May 16, 2002
OPINION AND ORDER
INTRODUCTION
Plaintiff, Dr. Pamella E. Settlegoode, was an Adaptive Physical Education ("APE") teacher who taught physical education to students with disabilities for defendant Portland Public Schools ("the District") for the 1998-99 and 1999-2000 school years. In June 1999, plaintiff began reporting incidents and situations of what she perceived to be discrimination against students with disabilities with respect to equipment, facilities, and services, as well as improper employee conduct, including falsified reports or lack of required reports, mismanagement of funds, and other violations of the law. In March 2000, the District declined to renew her probationary contract for the 2000-01 school year. By failing to renew her contract, plaintiff alleges that the District and its employees, Susan Winthrop ("Winthrop"), Robert Crebo ("Crebo") and Larry Whitson ("Whitson"), retaliated against her. Accordingly, plaintiff alleged that all defendants violated § 504 of the Rehabilitation Act, 29 USC § 794 (Claim One), and 42 USC § 1983 ("§ 1983") based on a violation of her First Amendment free speech rights (Claim Two). She also alleged that the District violated the Equal Pay Act (Claim Three) and Oregon's Whistleblower Act, ORS 659.530 (Claim Four).
Before trial, plaintiff voluntarily dismissed her claim for violation of the Equal Pay Act (Claim Three) and all claims against Whitson. The remaining claims were tried for eight days before a jury. On November 16, 2001, the jury returned a verdict in plaintiff's favor on all claims and awarded her the full amount of damages she sought on each claim, namely $500,000 non-economic damages, $402,000 economic damages, and $50,000 punitive damages against both Winthrop and Crebo for violating § 1983 (Claim Two).
Defendants then filed Motions for Judgment as a Matter of Law, Mistrial, and New Trial which this court granted in part and denied in part. Accordingly, on January 31, 2002, the court directed entry of judgment in favor of defendants.
Now pending before the court are defendants' Motions for Attorney Fees Against Plaintiff and Plaintiff's Attorneys (docket #195) and defendants' Bill of Costs (docket #198). For the reasons set forth below, defendants' Motions are denied and their Bill of Costs is granted in the sum of $11,674.18.
DISCUSSION
Pursuant to FRCP 54(d), 29 USC § 794a, and 42 USC § 1988, defendants move the court for an award of attorney fees against plaintiff in the sum of in the sum of $287,719.09. In addition, pursuant to FRCP 54(d), 28 USC § 1927, and the inherent power of the court, they seek an award of attorney fees against plaintiff's attorneys, Gregory Kafoury ("Kafoury") and William Goode ("Goode"). In addition, they seek costs as the prevailing party in the sum of $11,674.18.
I. Prevailing Defendants under Civil-Rights Statutes
Defendants first argue that as the prevailing party under the fee-shifting provisions of the Rehabilitation Act, 29 USC § 794a, and the Civil Rights Attorney's Fees Award Act of 1976, 42 USC § 1988, as amended, they are entitled to an award of attorney fees against plaintiff.
A. Legal Standard
With respect to fee-shifting statutes, "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. EEOC, 434 US 412, 422 (1978). And "if a plaintiff is found to have brought or continued such a claim in bad faith," the court should give extra consideration to a defendant's attorney fee petition. Id (emphasis in original). This standard applies to prevailing-defendant attorney fee requests brought pursuant to the Rehabilitation Act's fee-shifting provision and requests brought pursuant to 42 USC § 1988. See Patton v. County of Kings, 857 F2d 1379, 1381 (9th Cir 1988) (applying standard to a claim for attorney fees based on a § 1983 claim); Halasz v. University of New England, 821 F Supp 40, 41 (D Me 1993) (applying standard to the Rehabilitation Act's fee-shifting provision, 29 USC § 794a).
When a plaintiff pursues litigation to satisfy an agenda unrelated to her claims, the Christiansburg standard is satisfied because the litigation is deliberately vexatious and unreasonable. For example, a court may award attorney fees to a prevailing defendant when a plaintiff who pursued retaliation claims was "motivated by a desire to generate publicity adverse to a political opponent." Ecker v. Cohalan, 542 F Supp 896, 903 (EDNY 1982).
B. Analysis
Defendants contend that plaintiff's responses to deposition questions and at trial, as well as statements by plaintiff and her attorneys after the jury returned its verdict, demonstrate her goal to pursue an agenda unrelated to her claims. Declaration of Bruce Rubin ("Rubin Decl"), ¶¶ 7-9. Plaintiff alleged claims premised upon the District's nonrenewal of her contract in retaliation for criticizing the District's special education program. Yet in answer to the question of her purpose in suing defendants, plaintiff testified that she sought to benefit students through a "public forum, be it the school board, be it the newspaper, be it my colleagues, be it parents, be it a judge, be it a jury, somebody needs to put their eyes on this." Id, ¶ 7, Exhibit 1 (Deposition of Pamela Settlegoode), pp. 113-15. In addition, neither Settlegoode nor her husband-attorney Goode has hesitated to publicize their litigation as aimed at efforts to substantively challenge the practices of the District in its special education program. Id, Exhibit 2. Defendants further contend that during discovery and at trial, plaintiff repeatedly expressed her opinions about District programs in violation of court orders and without regard to the District's stipulation of good faith.
Defendants read too much into plaintiff's testimony and opinions. She clearly had an agenda, but that agenda was related to her claims for retaliation. During her employment, plaintiff wanted to provide her students with a nondiscriminatory free and appropriate education to which they were legally entitled. She constantly complained to her supervisors about what she perceived to be discrimination against her students and believed that her complaints led directly to her nonrenewal. However, as this court concluded based on the evidence presented at trial, she was mistaken. The District's special education program may well have had deficiencies, but so did plaintiff. It was one of plaintiff's uncontradicted deficiencies in her performance, not her stalwart support of her students, that resulted in her nonrenewal. Plaintiff's promotion of an agenda benefitting disabled students during and after trial is related to her explanation of why her contract was not renewed. That is not the type of unrelated agenda that falls under the Christiansburg standard.
Moreover, the standard for an award of attorney fees to prevailing defendants requires a finding that plaintiff's lawsuit was "frivolous, unreasonable or groundless." Christiansburg, 434 US at 442. Simply because plaintiff did not prevail does not mean that her action was unreasonable or without foundation.
Although defendants successfully moved to dismiss certain aspects of some claims, all of plaintiff's claims survived, except the Equal Pay Act claim which she voluntarily dismissed. Defendants did not file a motion for summary judgment, and this case proceeded to a two week jury trial and verdict in plaintiff's favor. Plaintiff established aprima facie case on each of her claims. The burden then shifted to defendants to establish legitimate non-discriminatory reasons or qualified immunity. The District's reasons for nonrenewal were explicitly stated in plaintiff's final evaluation and in the nonrenewal notices sent to plaintiff. Yet, despite months of discovery and thousands of pages of depositions taken by Goode, plaintiff presented no evidence at trial on one of the stated reasons for nonrenewal, namely the adequacy of her Individualized Education Programs. Moreover, plaintiff's evidence contesting a second reason, inadequate teaching to a group, consisted of a single evaluation stemming from a single class. Plaintiff made no effort to show that numerous other observations over a period of two years were inadequate other than by attacking the credibility of Winthrop, plaintiff's supervisor. Accordingly, this court found that plaintiff failed to produce sufficient evidence to rebut at least one of the District's legitimate, nondiscriminatory reasons for her nonrenewal. Although the jury reached a contrary conclusion, this court was persuaded that the verdict was not supported by any evidence or by any reasonable inferences drawn in plaintiff's favor from the evidence and likely was improperly influenced by the conduct of plaintiff's counsel.
Plaintiff now claims that she could not present such evidence because the court barred discovery of "program" evidence. Plaintiff is mistaken. Although this court barred discovery of "program" evidence, it never barred discovery of evidence by plaintiff to rebut the District's reasons for terminating her. Had plaintiff so requested, this court would have allowed the discovery of IEPs written by others which Winthrop deemed adequate as a basis for comparison to plaintiff's IEPs which Winthrop and others deemed inadequate.
Thus, this court cannot conclude that plaintiff's claims were baseless. As the Eighth Circuit noted when reversing a trial court's award of attorney fees to the defendant:
The procedural history of the case suggested that the EEOC's claim was not baseless as KBA neither sought a pretrial dismissal nor moved for summary judgment or a directed verdict. In addition, the district court had permitted the parties to file post-trial briefs and proposed factual and legal conclusions. Furthermore, the district court's findings of fact and conclusions of law disclosed that the court's ruling was based upon its credibility determinations. . . . In doing so, the court stated "however unpersuasive the EEOC's evidence ultimately proved to be, this evidence provided `some basis' for the EEOC's claim. Accordingly, the district court misapplied the Christiansburg standard . . . (concluding that the district court failed to exercise its discretion within the permissible bounds of 42 USC 2000e-5(k) and within the requirements of Christiansburg in awarding fees on the ground that the EEOC presented no credible evidence of discriminatory conduct."EEOC v. Kenneth Balk Assocs., 813 F2d 197, 198 (8th Cir 1987) (citations omitted); see also EEOC v. Bruno's Restaurant, 13 F3d 285 (9th Cir 1993).
Typically, cases with findings of "frivolity" are decided in the defendants' favor on a motion for summary judgment. In such cases, "plaintiffs did not introduce any evidence to support their claims. [On the other hand, i]n cases where the plaintiffs introduced evidence sufficient to support their claims, findings of frivolity typically do not stand." EEOC v. L.B. Foster Co., 123 F3d 746, 751 (3rd Cir 1997), cert denied, 522 US 1147 (1998), quoting Sullivan v. School Bd. of Pinellas County, 773 F2d 1182, 1189 (11th Cir 1985). Defendants have not cited any cases awarding prevailing attorney fees to a defendant under the Christiansburg standard after the case went to a jury for deliberations.
Defendants also argue, citing Price v. State of Hawaii, 789 F Supp 330, 334 (D Haw 1992), that the Christiansburg standard is satisfied when a plaintiff pursues litigation after it becomes clear that there is no longer a likelihood of prevailing. In June 2001, the arbitrator deemed plaintiff's claims of a retaliatory motive in a thorough arbitration award. According to defendants, plaintiff then should have discontinued the litigation unless she had held back important helpful admissible evidence at the arbitration. Instead, plaintiff's witnesses at trial were nearly identical to those she had presented in the arbitration, and the arbitrator noted the same teaching deficiencies noted by this court. According to defendants, plaintiff's failure to consider whether to proceed with trial and her continued pursuit of irrelevant program-related issues demonstrates that she should be assessed defendants' reasonable attorney fees.
However, plaintiff's first arbitration did not reach the non-renewal decision, but addressed only the first evaluation. The arbitration resulted in a revised evaluation that removed a ranking of "I" (needs improvement) and that included a disclaimer to disregard the classroom observations because Winthrop violated the union contract by discarding field notes. The second and final second evaluation, which is the substance of the second grievance, was not before that arbitrator. The outcome of the second grievance is unknown. If a limited arbitration were conclusive, then there would have been no jury deliberations or any jury instruction concerning the admissibility of the arbitration exhibit
Because plaintiffs' claims were not frivolous, unreasonable, or groundless, this court declines to award defendants their attorney fees against plaintiff.
II. Inherent Power of the Court to Award Attorney Fees .
Defendants also argue that this court should exercise its inherent power to assess attorney fees against plaintiffs' attorneys for disregarding court orders and the judicial process.
A. Legal Standard
"Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates." Chambers v. NASCO, Inc., 501 US 32, 43, reh'g denied, 501 US 1269 (1991), quoting Anderson v. Dunn, 19 US (6 Wheat) 204, 227, 5 L Ed 242, 248 (1821). To fill in the gaps between the other rules, courts are invested with inherent powers to sanction a party or counsel who "`wilfully abuse[s] the judicial process.'" Oregon RSA No. 6, Inc. v. Castle Rock Cellular of Or., Ltd. P'ship, 76 F3d 1003, 1007 (9th Cir 1996), quoting Roadway Express, Inc. v. Piper, 447 US 752, 766 (1980). These sanctions are designed not only to provide a substantive remedy to an aggrieved party, but also to "vindicate judicial authority." Mark Indus., Ltd. v. Sea Captain's Choice, Inc., 50 F3d 730, 733 (9th Cir 1995).
For purposes of imposing sanctions under the inherent power of the court, a finding of bad faith "does not require that the legal and factual basis for the action prove totally frivolous; where a litigant is substantially motivated by vindictiveness, obduracy, or malafides, the assertion of a colorable claim will not bar the assessment of attorney's fees."Fink v. Gomez, 239 F3d 989, 992 (9th Cir 2001), quoting In re Itel Sec. Litig., 791 F2d 672, 675 (9th Cir 1986), cert denied, 479 US 1033 (1987), quoting Lipsig v. National Student Mktg. Corp., 663 F2d 178, 182 (DC Cir 1980).
A court may assess attorney fees as a sanction against counsel: (1) where the court has the need to police itself and the judicial process ( Chambers, 502 US at 46); (2) with caution and restraint ( id at 44, 50); (3) when available statutes or rules are not "up to the task" ( id at 50); (4) where there exists wilful disobedience of a court order, or actions taken in "bad faith, vexatiously, wantonly, or for oppressive reasons" ( id at 45-46); and (5) where the imposition of lesser sanctions would not be adequate. The entire cost of the litigation may be assessed against counsel for willful disobedience of a court order. Id at 45, citing Toledo Scale Co. v. Computing Scale Co., 261 US 399, 428 (1923)
This may be a proper sanction when dismissal of a lawsuit for willful disobedience of a court order is too severe. Id, quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc'y., 421 US 240, 258 (1975), quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 US 714, 718 (1967). However, the imposition of sanctions for counsel's conduct should be reserved for the "rare and exceptional case." Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F3d 644, 649-50 (9th Cir 1997). Recklessness is insufficient unless accompanied by another factor such as frivolousness, harassment or improper purpose. Gomez v. Vernon, 255 F3d 1118, 1134 (9th Cir), cert denied, 122 S Ct 667 (2001). The imposition of a formal reprimand upon an attorney may be an adequate sanction. United States v. Talao, 222 F3d 1133, 1138 (9th Cir 2000). "Such sanctions require a court to make a finding of subjective bad faith," and due process concerns "may require `fair notice and an opportunity for a hearing on the record.'" Oregon RSA No. 6, 76 F3d at 1007 (citations omitted).
B. Kafoury
As set forth in its prior Opinion, this court has determined that during trial Kafoury:
1. Repeatedly and plainly ignored its orders regarding District program testimony to elicit sympathy for disabled children;
2. Misrepresented statements made in defense counsel's closing argument;
3. Improperly argued that the jury should act as "a conscience of the community;"
4. Violated motions in limine regarding the testimony of Dr. Melvin;
5. Repeatedly improperly injected collateral matters to attempt to impeach one of defendants' witnesses;
6. Improperly accused the defense attorneys of conspiring against plaintiff and creating false evidence; and
7. "Either recklessly or intentionally" misled the jury on the issue of plaintiff's credibility.
This court concluded that Kafoury's argument and other instances of misconduct exceeded proper bounds and was so conducive to prejudicing the jury's verdict that it substantially affected the total fairness of the trial. However, it also determined that entering judgment against plaintiff was too severe a sanction for Kafoury's misbehavior.
Granting judgment as a matter of law seems too harsh a remedy in this case. After all, plaintiff did submit evidence supporting her claim of retaliation. Had she heeded this court's warning when defendants orally moved for judgment as a matter of law at the close of her case-in-chief, she may have been able to cure the lack of evidence on causation. To dismiss this case based solely on the misconduct of her counsel would unduly punish plaintiff by denying her the opportunity to prove her case without unduly prejudicing the jury. Thus, this court concludes that had any of plaintiff's claims survived defendants' other motions for judgment as a matter of law, this court would grant a new trial to assure fairness and due process to defendants.
Opinion dated January 31, 2002 (docket #162), p. 66.
Thus, defendants seek the less severe sanction of assessing attorney fees against Kafoury. See Chambers, 501 US at 45 (citing cases).
Although unacceptable, Kafoury's conduct does not involve the same kind and frequency of misconduct that existed in Chambers. In Chambers, the sanctioned party perpetrated a fraud against the court from the beginning of the case to its end. Specifically, the party's conduct included attempts to deprive the court of its jurisdiction, lying and misleading the court, harassment, endless delay, and the accumulation of nearly $1,000,000 in fees and costs. In contrast, Kafoury's misconduct involved his trial presentation and primarily his approach to closing argument. Thus, the harm to the judicial process was limited in time and effect and cured by this court's ruling on defendants' post-trial motions.
This court can only fashion an appropriate remedy for conduct that abuses the judicial process, not to pacify defendants' anger at Kafoury's trial tactics. To ensure that Kafoury does not again engage in such inappropriate behavior, an alternative and less severe sanction is available, namely a public reprimand. This court has already written a lengthy opinion highly critical of Kafoury's tactics. Litigants should not ignore the unmistakable message from this court that the type of unprofessional behavior exhibited by Kafoury is not acceptable and cannot continue. Such a reprimand appraises other lawyers, judges, and clients that Kafoury's behavior is not condoned and may well jeopardize the client's cause. Shifting fees of nearly $300,000, which seems an exorbitant amount for this case, from defendants to Kafoury is simply not a proportionate penalty, especially since defendants have already obtained a verdict in their favor. Thus, this court declines to invoke its inherent powers to sanction Kafoury by requiring him to pay defendants' attorney fees.
C. Goode
Defendants also seek attorney fees from plaintiff's husband-attorney, Goode, because he was as much plaintiff's counsel as Kafoury. Goode represented plaintiff in most of this litigation and commenced other related proceedings against the District. Rubin Decl ¶ 6. Goode was present at plaintiff's independent medical examination, pursued "program" issues in spite of court rulings, and attended the trial and regularly addressed the court, although he sat behind the bar when the jury was present. As a result, defendants ask this court to conclude that Goode was involved in the planning of the misconduct by plaintiff's attorneys that occurred in the presence of the jury.
This court is not inclined to adopt the conspiracy theory espoused by defendants. Moreover, for the same reasons an award of fees against Kafoury is inappropriate, such an award against Goode is equally inappropriate.
III. Excess Fees and Costs Pursuant to 28 USC § 1927
Defendants alternatively seek an award of unspecified excess attorney fees and costs against plaintiff's attorneys pursuant to 28 USC § 1927.
A. Legal Standard
Pursuant to 28 USC § 1927, "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct" An attorney's delay and failure to act warrant § 1927 sanctions only if it is so egregious as to "multiply" the proceedings. See West Coast Theater Corp. v. City of Portland, 897 F2d 1519, 1528 (9th Cir 1990) (affirming § 1927 sanctions where counsel failed to provide any evidence of discriminatory intent, failed to answer interrogatories, failed to respond to a document demand, and failed to drop the case after improperly serving a defendant).
Sanctions under § 1927 must be supported by a finding of subjective bad faith, which "is present when an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent." In re Keegan Mgmt. Co., Sec. Litig., 78 F3d 431, 436 (9th Cir 1996) (internal quotations omitted). Thus, "[f]or sanctions to apply, if a filing is submitted recklessly, it must be frivolous, while if it is not frivolous, it must be intended to harass. . . . [R]eckless nonfrivolous filings, without more, may not be sanctioned." Id.
B. Analysis
Defendants argue that the conduct of plaintiff's attorneys dramatically prolonged this case by persistently presenting evidence and argument on excluded "program" issues in the pleading, discovery, and trial stages.
With respect to Kafoury, his sanctionable conduct is limited to the trial and the resulting post-trial motions. It is far from clear that the type of trial misconduct at issue here is the type of behavior that is sanctionable under 28 USC § 1927. Kafoury did not make frivolous arguments in order to harass defendants, but instead improperly injected prejudicial evidence and arguments into the trial. In short, this court does not perceive 28 USC § 1927 as a proper source of any sanction against Kafoury.
Even so, to the extent defendants contend that the trial was prolonged because of Kafoury's conduct, they have not submitted any evidence by which this court can allocate fees to that alleged proliferation. See Chalmers, 706 F2d 1210. In fact, this court doubts that the trial would have been significantly shorter had Kafoury stayed within the bounds of this court's pre-trial rulings. A stronger case could be made with respect to the time expended by defendants objecting to Kafoury's closing argument and filing those portions of the post-trial motions related to Kafoury's misconduct. However, defendants' attorney fee submissions do not separately indicate their time spent solely on those tasks and this court is unable to appropriately parse their billings.
With respect to Goode, defendants claim the proceedings were multiplied by attempts to present improper "program" evidence and argument, to commence unsuccessful proceedings, and to accompany plaintiff to see Dr. Turco. None of these rise to the level 28 USC § 1927 sanctions.
What evidence concerning "program" issues was discoverable and admissible plagued this case from beginning to end. The only permissible evidence pertained to whether plaintiff had been retaliated against for making "good faith" complaints about deficiencies in the District's special education program. As this court bemoaned many times, it was difficult to draw a bright line between permissible and impermissible evidence because plaintiff blamed her termination on her complaints about "program" issues. Although the merits of her complaints were irrelevant, the complaints themselves, and defendants' reaction to them, was relevant and admissible. The parties legitimately disagreed about the permissible scope of "program" issues. Therefore, various motions addressing the scope of "program" evidence that arose pre-trial did not unnecessarily multiply the proceedings.
Defendants also argue that this lawsuit is but one of numerous unsuccessful proceedings commenced by plaintiff, all over the same subject matter. Rubin Decl ¶ 6. Although conceding that no case specifically addresses whether such closely related proceedings should or should not be considered under 28 USC § 1927, defendants contend that they are relevant to whether proceedings have been unnecessarily multiplied.
The other proceedings commenced by plaintiff consisted of two grievances under the union contract, a mandamus action to compel a hearing before the District's Board as required by ORS 342.835(2) upon request of a non-renewed probationary teacher, and that hearing before the Board. However, "§ 1927 limits a federal court's ability to sanction an attorney for conduct before another court." GRiD Systems Corp. v. John Fluke Mfg. Co., Inc. 41 F3d 1318, 1319 (9th Cir 1994) (citation omitted). Furthermore, a plaintiff is entitled to pursue all claims that she may have. Even if she pursued similar issues arising under her union contract or Oregon law, she still has claims that she is entitled to pursue in this court for violations of federal law without being subject to sanctions.
With respect Dr. Turco, this court already granted defendants' motion for sanctions in the sum of $400 against plaintiff for refusing to be examined by Dr. Turco without Goode being present To also impose a sanction under 28 USC § 1927 against Goode would require a finding that Goode acted in bad faith in accompanying plaintiff to Dr. Turco's office. No facts support such a finding. The case law is not clear on whether legal counsel may observe a psychiatric exam, and, as this court noted, a psychiatric exam of plaintiff was not necessary.
Therefore, this court finds that plaintiffs attorneys did not so multiply the proceedings in this case unreasonably and vexatiously to be sanctioned pursuant to 28 USC § 1927.
IV. Bill of Costs
This court has the discretion to award costs to a prevailing party pursuant to FRCP 54(d). However, this rule is not read "as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case." Farmer v. Arabian Am. Oil Co., 379 US 227, 235 (1964). The expenses which may be taxed as costs are enumerated in 28 USC § 1920. With regard to costs not specifically allowable by statute, district courts have only limited discretion which should be exercised sparingly. Guinasso v. Pacific First Fed. Sav. Loan Ass'n, 100 FRD 264, 265 (D Or 1983).
Defendants' Bill of Costs seeks the sum of $11,674.18, consisting of $195.00 for service of summons and subpoenas, $10,451.38 for the fees of the court reporters for deposition, hearing, and trial transcripts, $627.80 for fees for copies of papers, and $400.00 for sanctions previously imposed by this court (docket #92). Plaintiff has not objected to any of these costs as excessive or impermissible under 28 USC § 1920.
Because defendants are the prevailing parties and the costs delineated in the Bill of Costs are properly taxable under 28 USC § 1920, this court exercises its discretion to award the full amount of costs to defendants.
ORDER
For the reasons set forth above, defendants' Motion for Attorney Fees against Plaintiff and Plaintiff's Attorneys (docket #195) is DENIED and defendant's Bill of Costs (docket #198) is granted in the sum of $11,674.18.