OpenJurist

940 F2d 651 20 Fed.r.serv.3d 893

940 F.2d 651

20 Fed.R.Serv.3d 893

Dwight K. COWELL, Plaintiff-Appellee,
v.
CITY OF VIRGINIA BEACH, Meyera E. Oberndorf, Mayor,
individually, and in her capacity as Mayor of the City of
Virginia Beach, Robert E. Fentress, individually, and in his
capacity as a member of Virginia Beach City Council, Reba S.
McClanan, individually, and in her capacity as a member of
Virginia Beach City Council, Barbara M. Henley,
individually, and in her capacity as a member of Virginia
Beach City Council, John A. Baum, individually, and in his
capacity as a member of Virginia Beach City Council, Albert
Balko, individually, and in his capacity as a member of
Virginia Beach City Council, Nancy Parker, individually, and
in her capacity as a member of Virginia Beach City Council,
John Moss, individually, and in his capacity as a member of
Virginia Beach City Council, John Perry, individually, and
in his capacity as a member of Virginia Beach City Council,
Harold Heischober, individually, and in his capacity as a
member of Virginia Beach City Council, William D. Sessoms,
individually, and in his capacity as a member of Virginia
Beach City Council, Aubrey V. Watts, Jr., individually, and
in his capacity as City Manager for the City of Virginia
Beach, Charles R. Wall, individually, and in his capacity as
Chief of Police for the City of Virginia Beach, R.J. Walker,
individually, and in his capacity as police officer for the
City of Virginia Beach, B.F. Eason, individually, and in his
capacity as a police officer for the City of Virginia Beach,
Defendants-Appellants,
Paul E. Sutton, II, Appellee.
Dwight K. COWELL, Plaintiff-Appellee,
v.
CITY OF VIRGINIA BEACH, Meyera E. Oberndorf, Mayor,
individually, and in her capacity as Mayor of the City of
Virginia Beach, Robert E. Fentress, individually, and in his
capacity as a member of Virginia Beach City Council, Reba S.
McClanan, individually, and in her capacity as a member of
Virginia Beach City Council, Barbara M. Henley,
individually, and in her capacity as a member of Virginia
Beach City Council, John A. Baum, individually, and in his
capacity as a member of Virginia Beach City Council, Albert
Balko, individually, and in his capacity as a member of
Virginia Beach City Council, Nancy Parker, individually, and
in her capacity as a member of Virginia Beach City Council,
John Moss, individually, and in his capacity as a member of
Virginia Beach City Council, John Perry, individually, and
in his capacity as a member of Virginia Beach City Council,
Harold Heischober, individually, and in his capacity as a
member of Virginia Beach City Council, William D. Sessoms,
individually, and in his capacity as a member of Virginia
Beach City Council, Aubrey V. Watts, Jr., individually, and
in his capacity as City Manager for the City of Virginia
Beach, Charles R. Wall, individually, and in his capacity as
Chief of Police for the City of Virginia Beach, R.J. Walker,
individually, and in his capacity as police officer for the
City of Virginia Beach, B.F. Eason, individually, and in his
capacity as a police officer for the City of Virginia Beach,
Defendants-Appellants,
Paul E. Sutton, II, Appellee.

Nos. 90-2172, 90-2207.

United States Court of Appeals, Fourth Circuit.

Submitted May 23, 1991.
Decided Aug. 9, 1991.
As Amended Aug. 26, 1991.

Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior District Judge. (CA-89-739-N)

Gregory N. Stillman, Kenneth R. Mayo, Hunton & Williams, Norfolk, Va., for appellants.

Paul E. Sutton, II, Dwight K. Cowell, appellees pro se.

E.D.Va.

NO. 90-2172 AFFIRMED; NO. 90-2207 DISMISSED.

Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:

1

This appeal arises from a denial of a motion for sanctions and attorney's fees for the prevailing defendants pursuant to Fed.R.Civ.P. 11 and 42 U.S.C. Sec. 1988. (No. 90-2172). We have thoroughly reviewed the record and the transcript of the evidentiary hearing on this motion, and we find that the district court did not abuse its discretion in denying sanctions. See Cooter & Gell v. Hartmarx Corp., 58 U.S.L.W. 4763, 4769 (U.S.1990).

2

Although the standard under Rule 11 is whether the signer of the pleading was "objectively reasonable" in believing his actions were grounded in fact and in law, the court's legal conclusions "are rooted in factual determinations." Id. at 4768. In making the objective inquiry whether the pleading is supported by fact and law " 'to the best of the signer's knowledge, information, and belief,' a court must make some assessment of the signer's credibility." Id.

3

Appellants claim the court erred in making a subjective inquiry into whether appellee's filings were reasonable. However, these "subjective" comments were largely fact-based credibility findings. The court, in its discretion, could find that an attorney with this knowledge, information, and belief was not objectively unreasonable in pursuing this action.

4

We similarly find that the court did not abuse its discretion in denying fees and costs under Sec. 1988. See Introcaso v. Cunningham, 857 F.2d 965, 967 (4th Cir.1988). Because we affirm in No. 90-2172, the appeal regarding the court's clarification of its final order (No. 902207) is moot. We deny appellants' motion for oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

5

No. 90-2172--AFFIRMED.

6

No. 90-2207--DISMISSED.