                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 06 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RAAFAT MOHAMMADKHANI,                            No. 11-15938

              Plaintiff-Appellant,               D.C. No. 2:07-cv-00095-KJD-LRL

RANDY RUMPH,

              Appellant,                         MEMORANDUM *

  v.

JAMES ANTHONY, et al.,

              Defendants-Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Kent Dawson, District Judge, Presiding

                     Argued and Submitted February 15, 2013
                            San Francisco, California

Before: FARRIS and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Timothy M. Burgess, District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
       Appellant Raafat Mohammadkhani and her attorney, Randy Rumph, appeal

the district court’s order awarding costs and attorney’s fees against

Mohammadkhani, and sanctioning Rumph by holding him jointly and severally

liable for the award. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review for abuse of discretion both the district court’s award of fees, Tutor-Saliba

Corp. v. City of Hailey, 452 F.3d 1055, 1059 (9th Cir. 2006), and its imposition of

sanctions, Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999).

       We are unable to determine whether the district court acted within its

discretion in awarding fees against Mohammadkhani because the court did not

clearly identify the legal and factual bases for the award. In civil rights cases, a

district court may award attorney’s fees to a prevailing defendant only in

exceptional circumstances where the plaintiff’s claims are frivolous, unreasonable,

or groundless. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 418-22

(1978); Harris v. Maricopa Cnty. Super. Ct., 631 F.3d 963, 971 (9th Cir. 2011). A

claim is not frivolous in this context merely because the plaintiff did not prevail.

Christiansburg, 434 U.S. at 421-22. The more carefully a court must examine a

claim to establish its legal insufficiency, the less likely it is that the claim is

frivolous. See Hughes v. Rowe, 449 U.S. 5, 15-16 (1980). Consequently, a court’s

inability to determine that an action may be dismissed prior to trial, such as where


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a plaintiff survives a motion for summary judgment, suggests that the plaintiff’s

claim is not frivolous. See Sanchez v. City of Santa Ana, 936 F.2d 1029, 1041 (9th

Cir. 1990); Jensen v. Stangel, 762 F.2d 815, 818 (9th Cir. 1985).

       Here, the district court found that Mohammadkhani’s claims were frivolous

based on the Ninth Circuit’s affirmation of the district court’s entry of judgment in

favor of the defendants. See Mohammadkhani v. Anthony, 347 F. App’x 286 (9th

Cir. 2009). However, the district court disposed of Mohammadkhani’s claims

only with the benefit of an entire trial record, and only after she survived several

dispositive motions and obtained a jury verdict in her favor. Under these

circumstances, the district court’s reliance on the fact that Mohammadkhani did not

prevail is insufficient to establish that her claims were frivolous.

       The district court provided several other reasons for its award; however, the

additional reasons implicate sanctionable conduct, rather than frivolous claims. To

the extent the district court intended to sanction Mohammadkhani for her

misconduct during the litigation, it failed to state this intent or identify the legal

basis for the sanctions. Because the district court did not clearly indicate how it

exercised its discretion in awarding fees against Mohammadkhani, we remand for

further explanation. See Margolis v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998).




                                             3
      The district court similarly failed to explain its decision to hold Rumph

jointly and severally liable for the award. The applicable fee shifting statutes

authorize attorney’s fees only against parties, not counsel. See 42 U.S.C. §

2000e-5(k); 42 U.S.C. § 1988(b). Accordingly, the district court’s decision to hold

Rumph responsible for the award constitutes a sanction. Our review of an order

sanctioning an attorney focuses on “whether each of the [district court’s] factual

bases supports the imposition of sanctions under the legal authorities cited by the

district court.” Yagman v. Republic Ins., 987 F.2d 622, 627 (9th Cir. 1993). Here,

the district court sanctioned Rumph without mentioning sanctions and without

citing legal authority. Consequently, we vacate the order and remand for an

explanation of the legal and factual bases for district court’s order.

      Mohammadkhani and Rumph request that this matter be reassigned to a new

judge on remand. Because the asserted reasons for the request are unsupported by

the record, their request is denied.

      VACATED AND REMANDED.




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