Cupp v. Smith

Full title: RONALD CUPP, Plaintiff, v. ANDREW SMITH, Defendant.

Court: United States District Court, Northern District of California

Date published: Mar 30, 2023

20-cv-03456-PJH (N.D. Cal. Mar. 30, 2023)

Opinion

20-cv-03456-PJH

03-30-2023

RONALD CUPP, Plaintiff, v. ANDREW SMITH, Defendant.

PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE

ORDER OF DISMISSAL WITH PREJUDICE

RE: DKT. NO. 143

PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE

Before the court is the parties' stipulation to dismiss this lawsuit with prejudice under Federal Rule of Civil Procedure 41(a)(1)(ii). This case has been thoroughly litigated, and trial is set to begin in less than one week, on April 3, 2023. The sole remaining claim is brought under Title 42 U.S.C. § 1983 for alleged breach of plaintiff's Fourth Amendment rights based on defendant Andrew Smith's February 15, 2019, inspection/search of the property at 4640 Arlington Avenue in Santa Rosa, California. Plaintiff has made clear that the claim is against Smith in both his personal and official capacity. Dkt. 1, Dkt. 38 (SAC ¶ 8), Dkt. 129. In light of the parties' agreement, the court ORDERS that this case is hereby DISMISSED WITH PREJUDICE as to all claims, causes of action, and parties, including against Smith in his personal and official capacity.

The parties' stipulation states, “Defendant reserves the right to request an award of fees and/or costs as allowed by the Court; Plaintiff reserves the right to oppose such request.” Dkt. 43 at 1. Defendant, as the prevailing party, may submit a bill of costs in accordance with Federal Rule of Civil Procedure 54 and Civil Local Rule 54. Plaintiff may object in accordance with those same Rules.

On the other hand, attorneys' fees may be awarded against an unsuccessful § 1983 plaintiff only “in exceptional circumstances” where the court finds “the plaintiff's action was frivolous, unreasonable, or without foundation.” Harris v. Maricopa Cnty. Superior Ct., 631 F.3d 963, 968 (9th Cir. 2011) (cleaned up); see also 42 U.S.C. § 1988(b). Defendant may certainly file a fee petition in light of this authority. However, given the survival of the plaintiff's § 1983 claim to this stage of litigation, the court would be hard-pressed to find that an award of attorneys' fees would be appropriate under this standard.

IT IS SO ORDERED.