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May 10, 1984


The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge:

 Plaintiffs in this action, would-be candidates for membership on the New York City Community School Board, District 8, brought this action on by Order to Show Cause to enjoin the holding of school board elections scheduled to take place on May 3, 1983. Plaintiffs alleged that defendants United Federation of Teachers ("UFT") and District Council 37 had systemically worked to exclude plaintiffs and other minority candidates from holding school board positions by engaging in racially motivated challenges to the legal sufficiency of their nominating petitions, and that the Board of Elections "had permitted plaintiffs to be excluded and their supporters disenfranchised" (Comp. P10) in violation of 42 U.S.C. §§ 1971, 1983, and 1985 and the Fourteenth and Fifteenth Amendments to the United States Constitution.

 A hearing was held before this Court on May 2, 1983, after which plaintiffs' application to enjoin the May 3 elections was denied and defendant New York City Board of Elections, motion to dismiss the complaint was granted. The case is presently before the Court on the separate motions of defendants New York City Board of Elections, District Council 37, and the United Federation of Teachers for an award of attorneys' fees pursuant to 28 U.S.C. § 1927 and 42 U.S.C. § 1988. For the reasons stated, defendants' applications are granted.


 Pursuant to 42 U.S.C. § 1988, a court has discretion to award prevailing parties in, inter alia, § 1983 or § 1985 litigation "a reasonable attorney's fee as part of the costs." A distinction has evolved, however, between cases in which plaintiffs are the prevailing parties and those in which defendants seek to recover fees. A prevailing defendant is entitled to recover costs only where the action brought is found to be "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansberg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978). See also EEOC v. Pet, Inc., 719 F.2d 383, 384 (11th Cir. 1983); Gerena-Valentin v. Koch, 554 F. Supp. 1017, 1021 (S.D.N.Y. 1983); Ecker v. Cohalan, 542 F. Supp. 896, 903 (S.D.N.Y. 1982). The more stringent standard applicable to defendants in intended to ensure that plaintiffs with uncertain but arguably meritorious claims are not altogether deterred from initiating litigation by the threat of incurring onerous legal fees should their claims fail. Badillo v. Central Steel Wire Co., 717 F.2d 1160, 1163 (7th Cir. 1983).On the other hand, the availability to defendants of attorney's fees awards in egregious circumstances serves "to protect defendants from burdensome litigation having no legal or factual basis." Christianburg Garment, supra, 434 U.S. at 420. See also Badillo, supra, 434 U.S. at 420; Gerena-Valentin, supra, 554 F. Supp. at 1017; Santiago and Birmingham v. Victim Services Agency, F. Supp. (S.D.N.Y. Feb. 3, 1984).

 A review of the record in this action amply demonstrates, in my view, the legal and factual insufficiency of the claims asserted and the reasonableness of requiring defendants to expend time and resources in defense preparation on the eve of the disputed election. As noted above, the parties appeared before this Court on May 2, 1983. At that time, counsel for plaintiffs was repeatedly asked to substantiate factually the highly conclusory charges of racial discrimination contained in the complaint. With respect to the allegation that defendant Board of Elections had "permitted" plaintiffs to be excluded from the ballot in violation of their civil rights, the following colloquy ensued:

 THE COURT: Do you have evidence that the Board of Elections of the City has applied the election law in a manner which is not uniform?

 MR. RICHMAN: Your Honor, we can and are prepared to show that although the Board of Elections has in and of itself taken no specific action, they have made their facilities available in order to document the materials, to wit, opening up the Board of Elections over on weekends and Saturdays for certain parties making that available to them --

 THE COURT: Do you criticize them for that, Mr. Richman?

 Here is someone who comes forward and says, "I think that a particular nominating petition is subject to challenge under the requirements of the election law."

 The Board of Elections in response to that challenge makes its facilities available to evaluate the challenge. Are they to be criticized for that?

 MR. RICHMAN: Not at all.

 THE COURT: What, then, is your criticism of the Board ...

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