The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
J. CORY CORDOVA CASE NO. 6:19-CV-01027
VERSUS JUDGE JAMES D. CAIN, JR.
LOUISIANA STATE UNIVERSITY MAGISTRATE JUDGE HANNA
AGRICULTURAL & MECHANICAL
COLLEGE BOARD OF SUPERVISORS,
ET AL.
MEMORANDUM ORDER
Before the court are a Motion for Attorney Fees and Costs [doc. 87] and Motion to
Tax Costs [doc. 100] filed by defendants Karen Curry, Kristi Anderson, and the Louisiana
State University Agricultural & Mechanical College Board of Supervisors (“LSU”)
(collectively, “LSU defendants”). The motions are opposed by plaintiff J. Cory Cordova
[docs. 93, 106] and have now been fully briefed.
I.
BACKGROUND
This suit arises from Dr. J. Cory Cordova’s non-renewal from the LSU “house
officer” (residency) program at Lafayette General Hospital in Lafayette, Louisiana.
Cordova was non-renewed from the program after one year, after being placed on probation
by program director Dr. Karen Curry. Following his non-renewal, he filed suit against
Curry, department head Dr. Nicholas Sells, director of graduate medical education Ms.
Kristi Anderson, and LSU, as well as the Lafayette General defendants.1 He alleged, in
relevant part, that Curry, Sells, Anderson, LSU, and the Lafayette General defendants
violated his right to due process under the federal and state constitutions, in violation of 42
U.S.C. § 1983, and committed a breach of contract by non-renewing him from the house
officer program and then sabotaging his efforts to apply to other programs. Doc. 1, att. 2,
pp. 192–93. He also filed state law claims against his former attorney, Christopher C.
Johnston and the Gachassin Law Firm, based on allegations of malpractice during his
representation.
On Rule 12(b)(6) motions to dismiss filed by the LSU defendants, the court
dismissed the breach of contract claims as to the individual defendants and dismissed many
of the due process claims. This left only the substantive due process claim against Curry
with the issue of qualified immunity deferred until summary judgment along with the
breach of contract claim against LSU. Docs. 30, 43. On motions for summary judgment
brought by the LSU and Lafayette General defendants, the court dismissed all remaining
claims as to both groups of defendants. Docs. 76, 77.
Cordova then brought Motions to Remand, asserting that the court had never had
federal question jurisdiction despite his repeated references to due process claims against
the LSU and Lafayette General defendants. Docs. 90, 109. The undersigned accepted the
Report and Recommendation of the Magistrate Judge [doc. 125], rejecting plaintiff’s
argument but agreeing that the court should decline to exercise supplemental jurisdiction
1 He also named as defendants the attorney and law firm who had represented him through the non-renewal process,
alleging that they had operated under an undisclosed conflict of interest. Those claims are still pending.
over the remaining claims against plaintiff’s former attorney and his firm. Doc. 131.
Pursuant to requests by the LSU and Lafayette General defendants, the court has certified
its rulings on the Motions for Summary Judgment as final under Federal Rule of Civil
Procedure 54(b). It now considers the LSU defendants’ Motion for Attorney Fees and Costs
[doc. 87] and Motion to Tax Costs [doc. 100].
II.
LEGAL STANDARD
As one of a few statutory exceptions to the “American Rule,” requiring each party
to bear its own litigation expenses, 42 U.S.C. § 1988 allows the award of reasonable
attorney fees to a prevailing party in a civil rights action brought under 42 U.S.C. § 1983.
Fox v. Vice, 563 U.S. 826, 832–33 (2011). This award may be made to a defendant when
the court finds “that the plaintiff’s action was frivolous, unreasonable, or without
foundation,” id. at 833 (internal quotation omitted) or that the plaintiff “continued to litigate
after it clearly became so.” Hughes v. Rowe, 449 U.S. 5, 15 (1980). In determining whether
the suit was frivolous, the court should focus not on the outcome but instead on “whether .
. . the case is so lacking in arguable merit as to be groundless or without foundation[.]”
G&H Dev., LLC v. Penwell, 2016 WL 5396711, at *3 (W.D. La. Sep. 27, 2016) (citing
Jones v. Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir. 1981)). To this end the court can
consider factors such as whether the plaintiff established a prima facie case, whether the
defendant offered to settle the suit, and whether the court held a full trial—but these factors
remain “guideposts” and frivolousness must be judged on a case-by-case basis. Id. (citing
Doe v. Silsbee Indep. Sch. Dist., 440 F. App’x 421, 425 (5th Cir. 2011) (per curiam)).
Generally, the Fifth Circuit regards an award of attorney fees for defendants as appropriate
when the plaintiff’s claim “lacks a basis in fact or relies on an [indisputably] meritless legal
theory” or when the “plaintiff knew or should have known the legal or evidentiary
deficiencies of his claim.” Doe, 440 F. App’x at 425 (internal quotations omitted).
III.
APPLICATION
Plaintiff spends most of his opposition focused on his subject matter jurisdiction
argument, which the court has already rejected and finds frivolous in itself. But this does
not mean that the constitutional claims were frivolous. Here, as the court’s prior opinions
describe, there were inadequate allegations to support some of plaintiff’s constitutional
claims and records provided in support of the summary judgment motion showed that there
was no basis for holding the remaining defendants liable for a due process violation based
on their academic judgments or evaluations of plaintiff. But plaintiff did provide grounds
for opposing the motion for summary judgment, including letters of recommendation from
providers cited as sources for his negative evaluations, which support a reasonable belief
in his theory that the proceedings against him were somehow unfair. Furthermore,
plaintiff’s opposition to the motions for summary judgment made clear that he had not
taken any opportunity to conduct discovery since the court had let some of his claims
survive the motion to dismiss. It is therefore difficult to determine that he continued to
litigate the claims after discovering their lack of merit. For these reasons, the court declines
to make an award of attorney fees under § 1988.
As for the Motion to Tax Costs, the LSU defendants seek taxable costs in the amount
of $1,068.80 (or $2,738.36 if the court deems Westlaw research and postage as included
under such costs rather than part of an attorney fee award) under Federal Rule of Civil
Procedure 54(d). Doc. 100. Plaintiff objects on the grounds that (1) no final judgment has
been entered under Federal Rule of Civil Procedure 54(b) and (2) legal research and
postage are not taxable as costs. Doc. 106. He also cursorily asserts that an award of costs
is discretionary and should not be made in this case. Id.
Rule 54(d) provides that, unless a federal statute, rule, or court order provides
otherwise, costs should be awarded to the prevailing party following a final judgment. This
rule applies to a victory on summary judgment and “contains a strong presumption that the
prevailing party will be awarded costs.” Pacheco v. Mineta, 448 F.3d 783, 793 (5th Cir.
2006). Indeed, the denial of such an award has been described as “in the nature of a
penalty.” Id. at 793–94 (internal quotations omitted). Since plaintiff’s response was filed,
the court has certified the judgment as final. Plaintiff provides no specific reason why costs
should not be awarded, and the court now determines that the LSU defendants are entitled
to the award. The court agrees, however, that there appears to be no support for taxing
research costs or postage. See 28 U.S.C. § 1920. Accordingly, the motion will be granted
in part and denied in part, with costs taxed in the amount of $1,068.80.
IV.
CONCLUSION
For the reasons stated above, the Motion for Attorney Fees [doc. 87] is DENIED
and the Motion to Tax Costs [doc. 100] is GRANTED IN PART and DENIED IN PART,
with costs awarded under Rule 54(d) in the amount of $1,068.60.
THUS DONE AND SIGNED in Chambers on this 14th day of April, 2021.
. = JAMES D. cant IR. C .
UNITED STATES DISTRICT JUDGE
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