United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
CHRISTINA ARMIJO SENIOR UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant's Opposed
Motion for Award of Attorney's Fees Pursuant to 28
U.S.C.A. § 1988 (sic) [Doc. 73] and
Defendant Arthur Anderson's Opposed Motion to Tax
Costs [Doc. 74]. The Court has considered the
submissions and the relevant law, and has otherwise been
fully informed in the premises, and hereby
DENIES the Motions.
brought this action pursuant to 42 U.S.C. § 1983 [Doc.
1, pp. 1-2, 9-13], and 42 U.S.C. § 1988(b) allows the
Court to award attorney's fees to the “prevailing
party” in a case brought pursuant to Section 1983.
Pursuant to Section 1988, “a prevailing plaintiff
should ordinarily recover an attorney's fee unless
special circumstances would render such an award
unjust.” Hensley v. Eckerhart, 461 U.S. 424,
429 (1983) (internal quotation marks and citations omitted).
A defendant, on the other hand, may only recover
attorney's fees where “the plaintiff's action
was frivolous, unreasonable, or without foundation.”
Fox v. Vice, 563 U.S. 826, 833 (2011) (internal
quotation marks and citation omitted).
Court granted partial summary judgment for Defendant in this
case. See Fed. R. Civ. P. 56(a) (allowing summary
judgment as to one or more claims or parts of claims). The
Court denied summary judgment with respect to Plaintiff's
constitutionally inadequate living condition claim [Doc. 71,
pp. 14-18], and therefore that claim can proceed to trial.
The Court granted summary judgment with respect to
Plaintiff's claim for damages from a MRSA infection.
[Doc. 71, pp. 14, 17-18] However, the Court has not entered
any final judgment pursuant to Federal Rule of Civil
Procedure 54(b) (allowing the Court to “direct entry of
a final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines that
there is no just reason for delay”). Nor would such
judgment be appropriate in this case because of the
similarity of the claims, given their shared factual
predicate and that the living condition claim was subsumed
within the MRSA claim. See Jordan v. Pugh, 425 F.3d
820, 826-27 (10th Cir. 2005) (setting forth the test for
finality of a judgment entered pursuant to Rule 54(b) with
regard to an order granting summary judgment on fewer than
all claims for relief; stating the claim must be distinct and
separable from the claims left unresolved, and that some
considerations are whether the claims “turn on the same
factual questions, whether they involve common legal issues,
and whether separate recovery is possible”).
has nonetheless filed motions for costs and attorney's
fees. Both Motions are premature because no final
judgment has been entered. See Fye v. Oklahoma Corp.
Comm'n, 516 F.3d 1217, 1223, n.2 (10th Cir. 2008)
(“The District Court's partial summary judgment
ruling was not a final judgment.”); Wheeler Mach.
Co. v. Mountain States Mineral Enters., Inc., 696 F.2d
787, 789-90 (10th Cir. 1983) (“[W]here, as in the
instant case, a partial summary judgment is rendered with
respect to only part of the relief sought by the appellants,
and where consideration of further relief is specifically
reserved, judgment is neither ‘final' nor on an
entire ‘claim.'” (internal quotation marks
and citation omitted)); Fed R. Civ. P. 54(d) (stating that
costs other than attorney's fees “should be allowed
to the prevailing party” (emphasis added));
see also Hildebrand v. Bd. of Tr. of Mich. State
Univ., 607 F.2d 1282, 1283 (6th Cir. 1979) (holding that
request for fees under Section 1988 was premature where the
case was remanded to establish whether the plaintiff's
rights were violated); cf. Moreno v. Taos Cnty. Bd. of
Comm'rs, No. 10-CV-1097 WJ/ACT, 959 F.Supp.2d 1284,
1288 (D.N.M. July 24, 2013) (holding that defendants were
entitled to attorney's fees because plaintiff's
damages claims became unreasonable after his expert witness
was withdrawn, however, the court did not consider the motion
until after trial) aff'd, 587 Fed.Appx. 442
(10th Cir. 2014) (unpublished decision).
addition, the Court observes that, until all of the claims in
this case are resolved, it is not possible to conduct the
analysis necessary to assess fees, because the test requires
balancing the degree of success of the parties. See
Hensley, 461 U.S. at 434 (allowing a plaintiff to obtain
attorney's fees under Section 1988 “even though he
succeeded on only some of his claims for relief”
depending on whether “the plaintiff fail[ed] to prevail
on claims that were unrelated to the claims on which he
succeeded” and whether the plaintiff's degree of
success made the fee award reasonable); Fox, 563
U.S. At 829, 835 (holding that a defendant may obtain
attorney's fees where the plaintiff asserted both
frivolous and non-frivolous claims and pointing out that
“a court could properly award fees to both parties-to
the plaintiff, to reflect the fees he incurred in bringing
the meritorious claim; and to the defendant, to compensate
for the fees he paid in defending against the frivolous
one” and stating that “[t]he question then
becomes one of allocation”). Accordingly, the Court
declines at this time to address any issues regarding the
prevailing party or whether any claim was “frivolous,
unreasonable, or without foundation.” Fox, 563
U.S. at 833 (internal quotation marks and citation omitted).
Defendant's Opposed Motion for Award of
Attorney's fees Pursuant to  U.S.C. § 1988
[Doc. 73] and Defendant Arthur Anderson's Opposed
Motion to Tax Costs [Doc. 74] are
DENIED as premature without prejudice to
being filed, if appropriate, after entry of final judgment.
 The title of Defendant's
Motion should refer to 42 U.S.C. §