United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
G, Doumar Senior United States District Judge
matter comes before the Court on defendant Frank
Gurdziel's Motion for Attorneys' Fees Pursuant to 42
U.S.C. § 1988(b), ECF No. 20, which he filed after
prevailing on his motion to dismiss plaintiffs' Section
1983 action pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure. In support of his motion, Mr. Gurdziel
claims that plaintiffs' Section 1983 claim against him, a
private citizen, was baseless and harassing. For the reasons
stated herein, Mr. Gurdziel's Motion for Attorneys'
Fees is GRANTED. ECF No.
26, 2017, Edward and Reiko Schwab, Jr., James and Carol
Melvin, Sandra D. Harris, and Michael Aschkenas
(collectively, "Plaintiffs") filed the
above-captioned action pursuant to 42 U.S.C. § 1983
alleging that the defendants violated Plaintiffs' rights
to due process under the Fifth and Fourteenth Amendments in
connection with the creation of special taxation district by
the City of Virginia Beach between 2011 and 2013. Complaint
("Compl."), ECF No. 1. Three of the four named
defendants were employees of the City of Virginia Beach at
the time the lawsuit was filed (hereinafter "City
Defendants"). Id. ¶¶ 4, 6, 7. The
remaining defendant, Mr. Gurdziel, was not an employee of the
City of Virginia Beach but was alleged to be the City's
"agent" at all times relevant to the complaint.
Id. ¶ 5.
September 1, 2017, the City Defendants, by joint motion, ECF
No. 6, and Mr. Gurdziel, by separate motion, ECF No. 3, moved
to dismiss Plaintiffs' complaint pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. Mr. Gurdziel's motion also requested an award
of costs and attorneys' fees pursuant to 42 U.S.C. §
1988(b). Id. On November 16, 2017, by written
opinion, the Court granted the defendants' motions, in
part, and dismissed Plaintiffs' action for lack of
subject matter jurisdiction. ECF No. 18. The Court declined
to reach the other grounds for dismissal raised in the
defendants' motions. Id. at 9. With respect to
Mr. Gurdziel's request for attorneys' fees, the Court
declined to address such request absent a motion in
compliance with Rule 54 of the Federal Rules of Civil
Procedure and granted Mr. Gurdziel leave to file such a
motion within fourteen days. Id .
November 29, 2017, Mr. Gurdziel filed the instant Motion for
Attorneys' Fees pursuant to 42 U.S.C. § 1988(b)
along with a supporting memorandum. ECF Nos. 20, 21. In
support, he attached the Affidavit of Mr. Gurdziel with
several supporting exhibits. ECF No. 21-2. On December 12,
2017, Plaintiffs filed a brief in opposition, which included
attorney argument and one unauthenticated email exhibit. ECF
No. 22. On December 17, 2017, Mr. Gurdziel filed a reply
brief. ECF No. 23.
February 6, 2018, the Court directed Plaintiffs to supplement
their brief in opposition with competent factual evidence.
ECF No. 26. Pursuant to such order, on February 20, 2018,
Plaintiffs filed a supplemental opposition brief, which
included affidavits of three plaintiffs: Mr. Schwab, Mr.
Aschkenas, and Ms. Harris. ECF Nos. 27, 27-1, 27-1, 27-3. On
March 6, 2018, Mr. Gurdziel filed a rebuttal to
Plaintiffs' supplemental opposition. ECF No. 28.
ALLEGATIONS IN PLAINTIFFS' COMPLAINT
summary of the allegations in Plaintiffs' complaint
follows. Beginning in or around July, 2011, Mr. Gurdziel and
the City Defendants allegedly "worked together" to
create a special taxation district known as a "Special
Service District" (hereinafter, "SSD") for
waterfront property owners in the Chesopeian Colony
subdivision in the City of Virginia Beach ("City").
Compl. ¶¶ 10, 25. The stated purpose of the
proposed SSD was to fund a dredging project by levying
additional taxes on the waterfront property owners within the
SSD who stood to benefit from such project. Id.
¶¶ 11-14. For the proposed SSD to be approved by
City Council, "80% of the waterfront property owners in
the Chesopeian Colony [subdivision] needed to be in favor of
its creation." Id. ¶ 15. Therefore, Mr.
Gurdziel and the City Defendants allegedly circulated
"willingness petitions" to Plaintiffs and other
waterfront property owners in the Chesopeian Colony
subdivision to garner support for creating the SSD.
Id. ¶ 16.
2013, when fewer than 80% of such owners approved of the SSD,
Mr. Gurdziel and the City Defendants allegedly
"conspired to add waterfront property owners from
neighboring waterfront communities - and also subtract
certain waterfront property owners from the actual Chesopeian
Colony - to meet the needed 80% threshold." Id.
¶¶ 17, 19. By the end of June, 2013, Mr. Gurdziel
and the City Defendants allegedly had successfully
"gerrymander[ed]" the SSD to "surpass the
required 80% threshold, " and the SSD was created.
Id. ¶ 22.
on the above, Plaintiffs claim that, by "creating] an
illegal, non-contiguous SSD without a proper public hearing,
" the defendants, "individually and collectively,
deprived Plaintiffs of their respective rights to Due
Process, " in violation of 42 U.S.C. § 1983.
Id. ¶¶ 23, 26. As the basis for Mr.
Gurdziel's liability under Section 1983, the complaint
further alleges that, at all relevant times, Mr. Gurdziel was
"clothed with the authority of the City of Virginia
Beach as its agent in charge of securing citizen approval for
the [SSD.]" Id. ¶ 5.
any action or proceeding to enforce a provision of [42 U.S.C.
§ 1983], the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs[.]" 42 U.S.C.
§ 1988(b). Although the statutory provision does not
distinguish between prevailing plaintiffs and prevailing
defendants, "the Supreme Court ruled that prevailing
defendants should receive attorneys' fees only when the
plaintiffs claim was 'frivolous, unreasonable, or
groundless, ' or when 'the plaintiff continued to
litigate after it clearly became so.'"
Hutchinson v. Staton. 994 F.2d 1076, 1080 (4th Cir.
1993) (quoting Christiansburg Garment Co. v. EEOC
434 U.S. 412, 422 (1980)). A plaintiff need not have brought
the claim in bad faith for a defendant to be awarded fees
under this provision. Id.
Motion for Attorneys' Fees, Mr. Gurdziel argues that
Plaintiffs had no factual basis to claim that he acted as an
"agent" of the City or to support any legal theory
that might render him, a private citizen, liable under
Section 1983. The issue before the Court is whether
Plaintiffs' Section 1983 claim against Mr. Gurdziel was
"frivolous, unreasonable, or groundless" such that
he should be awarded attorneys' fees under 42 U.S.C.
1983 provides redress only for those injuries "fairly
attributable to the State." DeBauche v. Trani,
191 F.3d 499, 506 (4th Cir. 1999) (quoting Lugar v.
Edmondsun Oil Co,, 457 U.S. 922, 937 (1982)). "The
person charged must either be a state actor or have a
sufficiently close relationship with state actors such that a
court would conclude that the non-state actor is engaged in
the state's actions." DeBauche, 191 F.3d at
506. "Thus, the Supreme Court has held that private
activity will generally not be deemed 'state action'
unless the state has so dominated such activity as to convert
it into state action: 'Mere approval of or acquiescence
in the initiatives of a private party' is
insufficient." Id. at 507 (quoting Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982)).
these principles, the Fourth Circuit has recognized four
"exclusive circumstances" under which a private
party can be deemed a state actor for purposes of §
(1) when the state has coerced the private actor to commit an
act that would be unconstitutional if done by the state; (2)
when the state has sought to evade a clear constitutional
duty through delegation to a private actor; (3) when the
state has delegated a traditionally and exclusively public
function to a private actor; or (4) when the state has