The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
This matter comes before the Court upon motion by defendants
Riverside Township Board of Education, J. Alan Ferner, and Jodi
Lennon for attorney's fees, costs, and sanctions against
plaintiff Charles Weisberg. For the reasons expressed in this
opinion, Defendants' motion will be denied.
I. ATTORNEY'S FEES AND COSTS
In an action brought under the Americans with Disabilities Act
("ADA"), the court may, in its discretion, award "a reasonable
attorney's fee, including litigation expenses, and costs" to the
"prevailing party." 42 U.S.C. § 12205. The Third Circuit has not yet addressed the standard that applies when this
fee-shifting provision is invoked by a prevailing defendant.
However, other courts to consider the issue have applied the
standard of Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421 (1978), in which the Supreme Court held that "a district
court may in its discretion award attorney's fees to a prevailing
defendant in a Title VII case upon a finding that the plaintiff's
action was frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith." See Veneziano v.
Long Island Pipe Fabrication & Supply Corp.,
238 F. Supp. 2d 683, 688 (D.N.J. 2002) (citing Parker v. Sony Pictures Entm't,
Inc., 260 F.3d 100, 111 (2d Cir. 2001); Bercovitch v. Baldwin
Sch., Inc., 191 F.3d 8, 11 (1st Cir. 1999); Bruce v. City of
Gainesville, 177 F.3d 949, 951-52 (11th Cir. 1999)). This Court
will do likewise, and apply the Christiansburg standard to
determine whether Defendants, who prevailed on Weisberg's ADA
claim, are entitled to attorney's fees under section 12205.
In determining whether a plaintiff's action was "frivolous,
unreasonable, or without foundation," the Third Circuit examines
several factors, including "(1) whether the plaintiff established
a prima facie case; (2) whether the defendant offered to settle;
and (3) whether the trial court dismissed the case prior to trial
or held a full-blown trial on the merits." EEOC v. L.B. Foster
Co., 123 F.3d 746, 751 (3d Cir. 1997). "Other factors that courts have considered in determining
if an action was frivolous include whether the question in issue
was one of first impression requiring judicial resolution [and
whether] the controversy is based sufficiently upon a real threat
of injury to the plaintiff." Barnes Found. v. Twp. of Lower
Merion, 242 F.3d 151, 158 (3d Cir. 2001). "These factors are,
however, guideposts, not hard and fast rules." L.B. Foster,
123 F.3d at 751. "Attorney's fees will rarely be awarded where the
district court grants the defendants' motion for summary judgment
because of the absence of legally sufficient evidence."
Veneziano, 238 F. Supp. 2d at 689 (quoting Batteast Constr. Co.
v. Henry County Bd. of Comm'rs, 202 F. Supp. 2d 864, 867 (S.D.
On November 10, 2004, this Court granted summary judgment for
Defendants on Weisberg's ADA claim on the ground that Weisberg
had produced insufficient evidence that he was "disabled" under
the meaning of the ADA. (Op. 28-29, Nov. 10, 2004.) Defendants
argue that Weisberg's ADA claim was frivolous because (1)
Weisberg's evidence did not establish a prima facie case of
discrimination under the ADA; (2) Defendants did not offer to
settle; (3) the claim was resolved on summary judgment prior to
trial; (4) the claim was not one of first impression; and (5)
there was no real threat of injury to Weisberg, as he "was never
able to articulate any basis for damages other than some undefined discrepancies related to the computation of his
sick days." (Defs.' Br. 9-10.) In response, Weisberg points out
that "[t]here is a significant difference between making a weak
argument with little chance of success and making a frivolous
argument with no chance of success. It is only the latter that
permits defendants to recover attorney's fees." (Pl.'s Opp. 7
(quoting Veneziano, 238 F. Supp. 2d at 689).)
Defendants are correct that many of the L.B. Foster and
Barnes Foundation factors work in their favor. However,
Weisberg did submit some evidence to support his assertion that
he was disabled.*fn1 Thus, even though the ADA claim was not
supported by sufficient evidence to withstand summary judgment,
and even though Weisberg's false denial that he had attended the
October 22, 2001 Giants-Eagles game at the Meadowlands cast
serious doubt on his credibility, this Court cannot say that
Weisberg's ADA claim was so lacking in evidence as to be
frivolous under the meaning of Christiansburg. Therefore,
Defendants' motion for attorney's fees under section 12205 will
Defendants argue that they are entitled to attorney's fees as
to the remaining claims asserted by Weisberg because those claims were "equally frivolous." (Defs.' Br. 11.)
Defendants cite Deutsch v. United States, 67 F.3d 1080, 1085-86
(3d Cir. 1995) as support for their assertion that the remaining
claims were frivolous because those claims were "not worthy of
serious attention." However, Defendants cite no authority that
would entitle them to attorney's fees under those circumstances.
(Cf. Defs.' Br. 8 (invoking section 12205 as authority for
fee-shifting as to ADA claim).) Because Defendants have provided
no argument as to why the alleged frivolity of the remaining
claims entitles them to attorney's fees, their motion for
attorney's fees as to those claims will be denied.
A court has the inherent power to assess attorney's fees
against a party when the party has "acted in bad faith,
vexatiously, wantonly, or for oppressive reasons." Chambers v.
NASCO, Inc., 501 U.S. 32
, 45-46 (1991). Here, Defendants argue
that Weisberg should be sanctioned and ordered to pay
Defendants' counsel fees and court costs based on the
following alleged instances of "bad faith":
1. "Mr. Weisberg testified falsely at depositions . . .
that fatigue occasioned by his `post concussion
syndrome' rendered him completely unable to attend a
Monday night football game at Giants Stadium. In
actuality, Mr. Weisberg had attended that game and
was depicted on surveillance video driving to, entering and leaving the Stadium." (Defs.' Br.
2. Weisberg "attempted to make a contested issue out
of an allegation that Superintendent Ferner had
engaged in extramarital affairs prior to his
appointment to his position at the Riverside Township
School Distict," and "use[d] this litigation in an
attempt to publicly embarrass and humiliate Dr.
Ferner." (Defs.' Br. 14, 16.)
3. "[D]uring a break in one of the depositions taken
in this matter, Mr. Madden returned to the conference
room where the deposition was being held to find
plaintiff's spouse rifling through Mr. Madden's notes
and other work product. Mrs. Weisberg, a former
plaintiff to this action, was engaging in this
conduct in the presence and full view of her
husband." (Defs.' Br. 16.)
In response to Defendants' first example of "bad faith,"
Weisberg presents evidence that the false statement at deposition
was not intentional, but was "in fact an incident of false
memory." (Pl.'s Opp. 18 (citing Exs. O, Q, R).) This evidence,
while somewhat dubious, casts enough doubt on Weisberg's bad
faith that this Court will not impose sanctions arising out of
the false deposition statement.
In response to Defendants' second example, Weisberg argues that
(1) Ferner did have an affair, as documented in the public-record
divorce complaint filed by his ex-wife; (2) Weisberg knew about
the affair; and (3) that knowledge provided Ferner with "motive"
for "harassing and tormenting" Weisberg. (Pl.'s Opp. 20-21.) Weisberg's argument utterly fails to explain
how this alleged motive is relevant to any of his claims.
However, this Court notes that Weisberg, as a non-attorney,
cannot be held to the standards of an attorney. Complaints as to
the relevance of allegations in Weisberg's court papers, and the
questions posed at deposition by Weisberg's attorney, are more
properly directed toward Weisberg's counsel. This Court will not
sanction Weisberg for his lack of knowledge as to what is and is
not legally relevant.
In response to Defendants' third example, Weisberg presents
evidence that his wife did not "rifl[e] through" Mr. Madden's
papers, but rather simply "moved [the] papers, which were spread
out on the table[,] so she could eat her lunch." (Pl.'s Opp. 21
(citing Ex. R).) Even if Mrs. Weisberg did rifle through the
papers, though, Defendants present no argument as to why the
actions of Mrs. Weisberg should subject her husband to sanctions.
Cf. Mack v. Mackiewicz, 9 N.J. Misc. 1219, 1220 (1931) ("The
common-law rule that a husband is responsible for the torts ...