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KERNER v. CULT AWARENESS NETWORK

January 27, 1994

BETTY KERNER, Plaintiff,
v.
CULT AWARENESS NETWORK, WASHINGTON, D.C., et al., Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This case comes before this court on defendants' petition for an award of attorney's fees and costs under Title II of the 1964 Civil Rights Act (42 U.S.C. § 2000a-3(b)) and other statutory and common law grounds. Having considered the extensive pleadings and evidence of both parties, this court shall deny defendants' petition. A separate order shall issue this date.

 I. BACKGROUND

 In the case underlying this attorney's fee litigation, plaintiff alleged that defendants -- the Cult Awareness Network, Washington, D.C. ("CAN/DC") and its executive director, Mr. Rudolph Arkin -- violated Title II of the Civil Rights Act of 1964 (42 U.S.C. § 2000a) by denying her admission to CAN/DC because she was a member of the Church of Scientology. Three other plaintiffs filed identical actions of their own with this court. *fn1"

 Yet because none of the plaintiffs in any of the four parallel cases properly served defendants, this court dismissed each case without prejudice. (Orders of February 26, 1993, No. 92-2239, No. 92-2240, No. 92-2241, No. 92-2242.)

 II. ANALYSIS

 The issue now before this court is whether CAN/DC and Mr. Arkin, defendants in all four suits, are entitled to fees and costs incurred in this aborted action. Defendants claim fees on several alternative grounds: 42 U.S.C. § 2000a-3(b), 28 U.S.C. § 1927, Fed. R. Civ. Proc. 11, inherent judicial power, and the common law doctrine of champerty.

 A. 42 U.S.C. § 2000a-3(b)

 Defendants' first argument is that they are entitled to fees and costs as victors in a Title II case. For any action filed under Title II, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 2000a-3(b). However, because defendants are not a "prevailing party" for the purposes of § 2000a, they are not entitled to fees and costs under that statute. In order to claim fees as a prevailing party, defendants must show either that they have prevailed on the merits of their case, *fn2" or -- if they never won a judgment on the merits -- that they nevertheless substantially received the relief they sought and that their defense was a "catalytic, necessary, or substantial factor in attaining the relief." *fn3"

 In the present case, defendants have been able to show neither success on the merits nor substantial victory. Defendants clearly have not won on the merits of their defense. This court never even reached the merits of their defense, having dismissed this case without prejudice on strictly procedural grounds. Nor have defendants attained substantial victory. Plaintiff's rights in this case have never been adjudicated, and she is free to file her action again (and serve defendants properly next time). Defendants are in the same position they were before the suit was filed in the first place. They have gained nothing lasting or substantial by their defense. Because defendants can show neither substantial success nor sucess on the merits, defendants cannot be considered a "prevailing party," and their claim for attorney's fees and costs under § 2000a-3(b) must fail.

 B. Section 1927

 Section 1927 of Title 28 holds attorneys liable for "excess" fees and costs if they have "multiplied the proceedings in any case unreasonably and vexatiously." 28 U.S.C. § 1927. Defendants allege that plaintiff's counsel have unreasonably and vexatiously multiplied these proceedings by filing many identical civil rights actions nationwide in which Scientologists have sought admission to the Cult Awareness Network ("CAN") or its affiliates like CAN/DC. These multiple actions were orchestrated by "attorneys working for the Church of Scientology using the plaintiff as a 'straw man.'" (Defs.' Reply, at 3.) By filing this action, plaintiff's counsel "knowingly participated in the filing of an action which they had to know was groundless and instigated for the purpose of harassing the defendants." (Petition for Award of Costs and Attorneys' Fees, at 9.) In defendants' view, "this action was a sham filed for the purpose of harassment . . . [Plaintiff's counsel] advance[d] [their] theory dozens of times, through nominal plaintiffs who are not the real parties in interest, withdrawing the complaints at preliminary stages of the cases only to re-file more of the same complaints later, as part of an organized plan to destroy a litigant." (Defs.' Reply, at 8.) Plaintiff has not disputed this allegation.

 The scattershot litigation strategy of plaintiff's counsel -- filing identical lawsuits nationwide and forcing defendants to defend the same action in various jurisdictions -- is certainly questionable. If plaintiff's counsel indeed plotted this in bad faith, § 1927 sanctions might have been warranted. However, because nothing in the record indicates that plaintiff's counsel acted in bad ...


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