Richard Cohen v. World Omni Financial Corp. , 457 F. App'x 822 ( 2012 )


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  •                                                                   [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                  FILED
    U.S. COURT OF APPEALS
    No. 11-13438                ELEVENTH CIRCUIT
    Non-Argument Calendar             JANUARY 30, 2012
    ________________________               JOHN LEY
    CLERK
    D.C. Docket No. 9:06-cv-80070-KLR
    RICHARD COHEN,
    lllllllllllllllllllll                                                Plaintiff-Appellant,
    versus
    WORLD OMNI FINANCIAL CORP.,
    lllllllllllllllllllll                                              Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (January 30, 2012)
    Before MARCUS, MARTIN and FAY, Circuit Judges.
    PER CURIAM:
    Richard Cohen appeals the district court’s grant of attorneys’ fees to World
    Omni Financial Corporation (“World Omni”) pursuant to 42 U.S.C. § 1988. On
    appeal, he argues that the district court abused its discretion in awarding World
    Omni attorneys’ fees and that, alternatively, the size of the award was an abuse of
    the court’s discretion. For the reasons set forth below, we vacate and remand the
    court’s award of attorneys’ fees.
    I.
    On May 13, 1995, while living in New York, Cohen leased a car. The
    lessor’s interest in the lease was assigned to World Omni. Pursuant to New York
    state law requiring prepayment, at the inception of the lease, of sales tax on the
    total lease payments due during the lease term, Cohen immediately paid to World
    Omni sales tax on all of the lease payments for the 36-month lease. In June 1996,
    Cohen moved to Florida with the leased car. Pursuant to Florida law requiring
    monthly payment of a use tax along with the monthly lease payments, World Omni
    determined in June 1996 that it was required to begin collecting from Cohen use
    tax for each of the remaining monthly lease payments. World Omni first billed
    Cohen for the Florida use tax with the July 1996 lease installment. Cohen paid the
    Florida use tax for approximately 15 months, through September 1997, before
    refusing on grounds that he previously had paid sales tax in New York. He
    unilaterally applied a “set-off” to his October 1997 lease payment in an amount
    equal to the 15 months of Florida use-tax payments.
    2
    Due, at least in part, to Cohen’s refusal to pay the Florida use tax, World
    Omni declared the lease in default in February 1998, repossessed the car, and sued
    Cohen in state court in January 2000 for damages stemming from his breach of the
    lease. In response to World Omni’s Florida action, Cohen submitted an answer
    admitting non-payment but counterclaiming that World Omni actually had
    breached the lease and libeled him. In defense of World Omni’s breach-of-lease
    claim, Cohen argued that collecting the Florida use tax without credit for the
    previously paid New York sales tax violated the Commerce Clause. World Omni
    then moved for summary judgment on Cohen’s counterclaim.
    The state court granted summary judgment to World Omni on the issue of
    liability based solely on Cohen’s non-payment, without addressing Cohen’s
    constitutional defense. After a jury trial on the issue of damages, Cohen was
    ordered to pay a money judgment. Cohen appealed the judgment to the state
    appellate court, again raising his constitutional defense. The state appellate court
    per curiam affirmed the judgment without a written opinion. Cohen submitted a
    petition for writ of certiorari to the state district court of appeals, again raising his
    constitutional defense. The state district court of appeals denied certiorari without
    a written opinion. In June 2005, Cohen paid the money judgment and associated
    attorneys’ fees. Cohen then petitioned the U.S. Supreme Court for writ of
    3
    certiorari, which was denied in October 2005 without a written opinion.
    Cohen filed his original § 1983 complaint against World Omni on January
    20, 2006. On March 23, 2006, World Omni filed a motion to dismiss or, in the
    alternative, motion for summary judgment. In this motion, World Omni argued
    that Cohen’s complaint failed to state a claim on which relief could be granted
    because: (1) there was no state action; (2) on the face of the complaint, the claim
    was time barred under the applicable four-year statute of limitations; and (3) the
    doctrines of collateral estoppel and res judicata barred relief. As to the statute of
    limitations issue, Cohen responded that his claim was not time barred because he
    was not actually injured until he had exhausted his options in the state appellate
    courts and was forced to pay the unconstitutional tax as part of the state-court
    judgment in June 2005.
    The court converted the motion to dismiss into a motion for summary
    judgment and gave Cohen the opportunity to file additional arguments and
    evidence. In a memorandum of law, Cohen asserted that, as to World Omni’s res
    judicata argument, his claim did not accrue until June 2005. Until that point, he
    argued, he had not been injured because he had not actually paid the
    unconstitutional tax. Cohen also submitted the affidavit of Chris Slader, a tax
    manager at World Omni’s parent company. Slader attested that World Omni was
    4
    required by the state to collect and pay the monthly use tax on Cohen’s leased car.
    The court granted World Omni’s motion for summary judgment, finding that it
    was barred by res judicata. The court also questioned its jurisdiction under the
    Rooker-Feldman1 doctrine. Cohen appealed this order. World Omni moved for
    attorneys’ fees. The court awarded World Omni attorneys’ fees, and Cohen again
    appealed.
    In reviewing the orders granting summary judgment and attorneys’ fees, we
    remanded the case to allow the district court to consider whether it had
    jurisdiction, did not address the court’s res judicata findings, and vacated the
    award of attorneys’ fees.
    On remand, the district court determined that it had jurisdiction for
    Rooker-Feldman purposes and that Cohen’s claim was not barred by res judicata
    or collateral estoppel. The district court then considered World Omni’s original
    motion to dismiss. The court dismissed the case because Cohen had not stated a
    cause of action under § 1983. Specifically, Cohen could not show that World
    Omni acted under color of state law. The court declined to address World Omni’s
    statute of limitations defense because it was “an affirmative defense appropriate
    1
    Rooker v. Fid. Trust Co., 
    263 U.S. 413
    , 
    44 S. Ct. 149
    , 
    68 L. Ed. 362
    (1923); D.C. Court
    of Appeals v. Feldman, 
    460 U.S. 462
    , 
    103 S. Ct. 1303
    , 
    75 L. Ed. 2d 206
    (1983).
    5
    for resolution on summary judgment.” The court gave Cohen 15 days to file an
    amended complaint.
    Cohen filed an amended complaint, alleging, among other things, that
    World Omni received state encouragement from policies issued by the Florida
    Department of Revenue and acted under color of state law when it brought suit in
    a Florida court asking that court to enforce a discriminatory practice. He further
    alleged that World Omni had acted intentionally or with deliberate indifference or
    callous disregard of his rights within the meaning of § 1983, as the Commerce
    Clause forbids a state from imposing a tax identical to one already paid in another
    state without providing credit for the out-of-state payment.
    On October 26, 2009, World Omni filed its first answer, in which it asserted
    a number of affirmative defenses. In particular, World Omni asserted that Cohen
    had not established the under color of law element because World Omni was
    required by Florida law to collect the tax.
    World Omni later moved for summary judgment and submitted the
    deposition of Buzz McKown, a Revenue Program Administrator for the
    Department of Revenue. McKown testified that dealers were required to comply
    with the Florida sales and use tax, which required a dealer to collect and remit the
    tax even if a vehicle lessee moved to Florida after paying sales tax up front in New
    6
    York. The legislature provided that dealers would receive collection allowances
    for collecting and remitting taxes in a timely manner, but McKown was not aware
    of any coercion of dealers. If a dealer failed to collect and remit the use tax, both
    the dealer and the lessee would become liable for the uncollected tax, as well as
    interest and penalties. World Omni also submitted Slader’s deposition, at which
    he testified that World Omni was required by the state to collect the tax even if the
    customer had paid sales tax in another state and that World Omni would be subject
    to financial and criminal penalties if it did not do so. World Omni remitted the
    entire tax it collected from Cohen to the state, and it was not coerced to collect the
    tax.
    In response, Cohen asserted that, in both the state and federal proceedings,
    World Omni stated that it was required by the Department of Revenue to collect
    the tax. Such a statement was inconsistent with World Omni’s argument that it
    was not coerced into collecting the tax. World Omni agreed that it would have
    been penalized if it had not collected the tax, and Cohen argued that such penalties
    indicated that the state coerced World Omni into collecting the tax. Cohen also
    submitted a number of documents in support of his opposition to the motion for
    summary judgment, including: (1) World Omni’s state court motion for summary
    judgment, in which World Omni asserted that it was required under Florida law to
    7
    collect the tax; and (2) Slader’s affidavit, in which he attested that World Omni
    had been required under Florida law to collect from Cohen and pay Florida state
    taxes on the vehicle even though Cohen had already paid sales tax on the vehicle
    in New York.
    On August 5, 2010, World Omni substituted its counsel, replacing the law
    firm Ritter Chusid Bivona & Cohen, LLP with the law firm Akerman Senterfitt.
    On August 9, 2010, World Omni moved to amend its answer to include the
    affirmative defense that Cohen’s claim was barred by the statute of limitations.
    The same day, World Omni moved for leave to file a motion for summary
    judgment based on its statute of limitations defense. The court granted both of
    these motions on August 10, 2010. In its amended answer, World Omni continued
    to assert that it was not acting under color of law because Florida law required it to
    collect the tax, and it added the affirmative defense that Cohen’s claim was barred
    by the statute of limitations. In its motion for summary judgment, World Omni
    argued that the claim had accrued in or before June 1996, when he brought his
    vehicle to Florida and the Florida use tax first was assessed. The amended
    complaint specifically alleged that the Commerce Clause violation was caused by
    the refusal to credit taxes already paid to New York. According to World Omni,
    Cohen had been aware of the injury at least since June 1996. There also was no
    8
    dispute as to his knowledge that World Omni inflicted the alleged injury, as he had
    been involved in state-court litigation with World Omni since January 2000 and
    had specifically alleged a counterclaim in February 2000 on the basis of the
    purported double taxation.
    Cohen responded that a claim does not accrue until the wrongful act results
    in damages. World Omni’s invoicing of the tax did not result in damages because
    Cohen took a set-off to his October 1997 lease payment in an amount equal to the
    Florida tax he had paid up to that date and thus did not pay the tax on net. He
    argued that damages began to accrue after World Omni resorted to the state court
    to collect the tax and that the damages continued to accrue throughout the entirety
    of the state court litigation. Had he succeeded in the state court, he would have
    suffered no damages because he would not have had to pay any judgment. World
    Omni replied, in part, that any damages that Cohen suffered accrued by October
    1997, when Cohen unilaterally took a set-off for the Florida tax that he had paid.
    After holding a hearing on the motion for summary judgment, the district
    court granted World Omni’s motions for summary judgment. First, the court
    addressed whether Cohen’s claim was barred by the statute of limitations, finding
    that his claim was barred under any possible timeline. The court explained that
    Cohen’s claim was subject to a four-year statute of limitations, and Cohen’s claim
    9
    was barred if it had not accrued by January 20, 2002—four years before he filed
    his original § 1983 complaint. The complained-of injury was the alleged double
    taxation that occurred when the Florida use tax first was assessed in June 1996 and
    World Omni refused to credit the New York taxes against the Florida tax. Finally,
    Cohen’s memorandum in opposition stated that the alleged constitutional injury
    arose when World Omni resorted to the state court in 2000 to collect the tax.
    Thus, under any timeline, the cause of action accrued before January 20, 2002.
    Next, regarding whether World Omni was acting under color of state law,
    the court found that there was no evidence of coercion or significant
    encouragement to satisfy the state compulsion test. World Omni collected the tax
    because it was required by law to do so, but Slader testified that World Omni was
    not coerced into collecting the tax. The court also found that Cohen had not
    established a constitutional violation. Cohen argued that his constitutional injury
    arose when World Omni brought an action in state court. However, World Omni
    had initiated that lawsuit because Cohen defaulted on his lease for more reasons
    than simply failing to pay the Florida tax. Thus, Cohen could not show that the
    state-court lawsuit violated his rights under the Constitution. Finally, the court did
    not need to address the merits of his Commerce Clause theory because he had not
    established that World Omni acted under color of law. Accordingly, the district
    10
    court entered judgment in favor of World Omni and against Cohen. Cohen
    appealed.
    On December 17, 2010, World Omni filed a motion for attorneys’ fees and
    costs under 42 U.S.C. § 1988, arguing that Cohen’s lawsuit was frivolous. First, it
    argued, Cohen did not establish a prima facie case. He had failed to present any
    evidence that World Omni acted under color of law, as required in a § 1983 claim,
    and his claim had been time barred for over ten years, since June 2000. Second,
    World Omni argued that it had not made a large settlement offer, which further
    supported a finding of frivolity and its motion for attorneys’ fees. Third, the
    district court granted its motion for summary judgment, resolving the case before
    trial. World Omni sought $228,895.00 in attorneys’ fees as well as interest.
    Finally, World Omni sought an additional $6,409.37 in costs under § 1988.
    In response, Cohen argued that he established a prima facie case, but even if
    he had not done so, attorneys’ fees would not be required. One factor that went
    against a finding of frivolity was the attention given to the claim by the district
    court. Here, the court had issued a number of orders, considered a number of legal
    issues, found in Cohen’s favor as to issues such as res judicata, sua sponte held a
    summary judgment hearing, and issued a 15-page order granting World Omni’s
    motion for summary judgment. Finally, World Omni did not assert that his claim
    11
    was time barred until August 2010, after it had already filed its motion for
    summary judgment.
    World Omni replied that Cohen’s claim was frivolous, first because it had
    been time barred since October 2001. World Omni had first raised the statute of
    limitations as part of its 2006 motion to dismiss. However, the district court
    declined to consider that issue in ruling on the motion to dismiss. Cohen had been
    aware of this defense since 2006, and it was irrelevant that World Omni added that
    defense in an amendment to its motion for summary judgment.
    Subsequently, we affirmed the district court’s grant of summary judgment to
    World Omni. We held that Cohen’s claim was barred by the statute of limitations,
    and we declined to reach the additional issues on appeal of whether World Omni
    acted under color of law or whether Cohen had suffered a constitutional violation.
    As to the statute of limitations, Cohen’s claim was time barred if it had accrued
    before January 20, 2002. Cohen alleged that World Omni violated his
    constitutional rights by imposing the Florida tax without crediting him for the tax
    he had paid in New York. World Omni had imposed the Florida tax for 15 months
    beginning in July 1996, and Cohen first noticed the tax in October 1997. Thus, if
    Cohen’s rights were violated, the violations occurred from July 1996 through
    September 1997. Cohen’s attempt to apply a set-off did not mean he had not been
    12
    injured, it merely showed that he had discovered his alleged injury. Thus, he was
    aware of his injury by October 1997, the limitations period began to run before
    January 20, 2002, and his claim was time barred.
    The district court then granted World Omni’s motion for attorneys’ fees and
    costs, awarding World Omni $228,895 in attorneys’ fees and $6,409.37 in costs,
    plus interest. First, the court found that Cohen had not presented any evidence to
    show that World Omni acted under color of law, an element of a § 1983 claim.
    Second, Cohen’s claim had been time barred since 2000, and under Munshi v. N.Y.
    Univ., 
    528 F. Supp. 1088
    (S.D.N.Y. 1981), attorneys’ fees were appropriate when
    a party should have known that his claim was time barred. Third, World Omni did
    not make a large settlement offer. Fourth, the case did not proceed to trial because
    the court had granted summary judgment to World Omni. As to the
    reasonableness of the attorneys’ fees, the court expressed concern at the $525
    hourly rate one of the attorneys at Akerman Senterfitt had charged. However,
    Cohen had not objected to the number of hours claimed or to the hourly rate billed,
    and the court found that the requested attorneys’ fees were reasonable. Cohen
    timely appealed the order granting attorneys’ fees and costs.
    II.
    We review the award of attorneys’ fees for an abuse of discretion. Quintana
    13
    v. Jenne, 
    414 F.3d 1306
    , 1309 (11th Cir. 2005). A court abuses its discretion by
    applying an incorrect legal standard, following incorrect procedures in making a
    determination, or making clearly erroneous factual findings. Cordoba v. Dillard’s,
    Inc., 
    419 F.3d 1169
    , 1180 (11th Cir. 2005) (quotation omitted).
    In a 42 U.S.C. § 1983 case, “the court, in its discretion, may allow the
    prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C.
    § 1988(b). A prevailing defendant is only to be awarded attorneys’ fees where the
    plaintiff’s case was “meritless in the sense that it [was] groundless or without
    foundation.” Hughes v. Rowe, 
    449 U.S. 5
    , 14, 
    101 S. Ct. 173
    , 178, 
    66 L. Ed. 2d 163
    (1980) (quotation omitted). Attorneys’ fees are also warranted where the
    plaintiff’s claim “was frivolous, unreasonable, or groundless, or . . . the plaintiff
    continued to litigate after it clearly became so.” 
    Id. at 15,
    101 S.Ct. at 178-79
    (quotation omitted).
    Whether a claim is frivolous is a case-by-case determination. Sullivan v.
    Sch. Bd. of Pinellas Cnty., 
    773 F.2d 1182
    , 1190 (11th Cir. 1985). We have
    considered a number of factors in reviewing courts’ frivolity determinations,
    including: “(1) whether the plaintiff established a [prima facie] case; (2) whether
    the defendant offered to settle; and (3) whether the trial court dismissed the case
    prior to trial.” 
    Id. at 1189
    (holding that the plaintiff’s claim was not frivolous
    14
    where she had established a prima facie case even though she ultimately lost at
    trial). “[T]he presentation of a [prima facie] case in response to a motion for
    summary judgment means that a claim necessarily cannot . . . be considered
    frivolous.” 
    Quintana, 414 F.3d at 1307
    (holding that the plaintiff’s discrimination
    claim was not frivolous, despite her inability to rebut the defendant’s legitimate
    reason for failing to promote her, because she had established a prima facie case).
    Generally, where a plaintiff introduces sufficient evidence to support his claims, a
    finding of frivolity will not be upheld. 
    Sullivan, 773 F.2d at 1189
    . However,
    where a plaintiff introduces no evidence in support of his claims, a finding of
    frivolity is appropriate. 
    Id. Another factor
    we consider in a § 1988 case is the
    attention given to the claim: a claim is not frivolous when it is “meritorious
    enough to receive careful attention and review.” Busby v. City of Orlando, 
    931 F.2d 764
    , 787 (11th Cir. 1991).
    “To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove (1) a
    violation of a constitutional right, and (2) that the alleged violation was committed
    by a person acting under color of state law.” Holmes v. Crosby, 
    418 F.3d 1256
    ,
    1258 (11th Cir. 2005). Private conduct may be fairly attributable to the state
    where: (1) “the deprivation [was] caused by the exercise of some right or privilege
    created by the State or by a rule of conduct imposed by the state or by a person for
    15
    whom the State is responsible,” and (2) “the party charged with the deprivation . . .
    may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 
    457 U.S. 922
    ,
    937, 
    102 S. Ct. 2744
    , 2753-54, 
    73 L. Ed. 2d 482
    (1982). Where the plaintiff alleges
    that the private defendant’s conduct was the product of an unconstitutional
    statutory scheme, the first element of the fair-attribution test is satisfied. 
    Id. at 941,
    102 S.Ct. at 2756. There are three tests generally used in this Court to
    determine whether a defendant is a state actor: “(1) the public function test; (2) the
    state compulsion test; and (3) the nexus/joint action test.” Willis v. Univ. Health
    Servs., Inc., 
    993 F.2d 837
    , 840 (11th Cir. 1993). The plaintiff need only establish
    that the defendant is a state actor under one of these three tests. See 
    id. “The state
    compulsion test limits state action to instances where the government has coerced
    or at least significantly encouraged the action alleged to violate the Constitution.”
    
    Id. (quotation omitted).
    Where the statutes at issue merely permitted the
    defendant's conduct without either compelling or encouraging it, the state
    compulsion test is not satisfied. Harvey v. Harvey, 
    949 F.2d 1127
    , 1130-31 (11th
    Cir. 1992). “Mere approval or acquiescence in the private actor’s choice is not
    enough.” Langston ex rel. Langston v. ACT, 
    890 F.2d 380
    , 385 (11th Cir. 1989).
    Rather, the state must enter into the decision-making process, such that the private
    actor’s choice may be deemed that of the state. 
    Id. 16 When
    Cohen moved to Florida in 1996, state law provided as follows:
    (3) Every dealer making sales . . . of tangible personal property for
    distribution, storage, or use or other consumption, in this state, shall .
    . . collect the tax imposed by this chapter from the purchaser.
    ....
    (8)(a) Use tax will apply and be due on tangible personal property
    imported or caused to be imported into this state for use,
    consumption, distribution, or storage to be used or consumed in this
    state; provided, however, that . . . it shall be presumed that tangible
    personal property used in another state, territory of the United States,
    or the District of Columbia for 6 months or longer before being
    imported into this state was not purchased for use in this state. The
    rental or lease of tangible personal property which is used or stored
    in this state shall be taxable without regard to its prior use or tax
    paid on purchase outside this state.
    Fla. Stat. § 212.06(3), (8)(a) (1996) (emphasis added). Chapter 212 imposes
    various civil and criminal penalties on dealers who fail to comply with its
    requirements. Fla. Dep’t of Revenue v. Naval Aviation Museum Found., Inc., 
    907 So. 2d 586
    , 587 (Fla. Dist. Ct. App. 2005).
    Although a close question, we conclude that the district court abused its
    discretion in granting World Omni’s motion for attorneys’ fees. See 
    Quintana, 414 F.3d at 1309
    . As to the first Sullivan factor, whether Cohen established a
    prima facie case, the district court found that Cohen failed to present any evidence
    that World Omni acted under color of law. This finding was clearly erroneous, as
    Cohen submitted evidence in support of his argument that World Omni acted
    17
    under color of law.2 See 
    Cordoba, 419 F.3d at 1180
    . In opposition to the motion
    for summary judgment, Cohen argued that, based on World Omni’s assertions that
    it was required by the state to collect the tax or be subjected to penalties, World
    Omni acted under color of law in that it was coerced into violating the
    Constitution by enforcing the unconstitutional Florida law. Cohen submitted
    World Omni’s state court motion for summary judgment, in which World Omni
    asserted that it was required under Florida law to collect the tax. Cohen also
    attached Slader’s affidavit to his response, in which Slader attested that World
    Omni had been required under Florida law to collect from Cohen and pay Florida
    state taxes on the vehicle even though Cohen had already paid sales tax on the
    vehicle in New York. Therefore, Cohen did present evidence in support of his
    claim that World Omni collected the tax under color of law.
    Moreover, it appears that Cohen was correct that World Omni acted under
    color of law. Section 212.06(8)(a) did not merely permit or authorize the
    collection of use taxes. Cf. 
    Harvey, 949 F.2d at 1130-31
    (holding that a private
    party who invoked a statute that merely authorized, without encouraging or
    2
    We do not address the second element of Cohen’s § 1983 claim, whether there was a
    constitutional violation, because the district court did not address this element in awarding
    attorneys’ fees and neither party addresses this element on appeal. See 
    Holmes, 418 F.3d at 1258
    .
    18
    compelling, involuntary commitments was not a state actor). Rather, it explicitly
    mandated the collection of the taxes, and chapter 212 imposed both civil and
    criminal penalties on dealers who failed to comply. § 212.06(3), (8)(a); Naval
    Aviation Museum 
    Found., 907 So. 2d at 587
    . The state legislature decided that
    lessees who moved to Florida from “up-front” states would be subject to the
    Florida use tax, and it gave dealers and lessors such as World Omni no discretion
    to decide whether and when to impose the tax. § 212.06(3), (8)(a). Slader’s and
    McKown’s assertions that they did not perceive the measures as coercive rings
    hollow and certainly does not outweigh the fact that the scheme of incentives and
    penalties “at least significantly encouraged” World Omni's collection of the
    allegedly unconstitutional tax. See 
    Willis, 993 F.2d at 840
    . Thus, the state
    “enter[ed] into the decision-making process, such that [World Omni's] choice may
    be deemed that of the state.” 
    Langston, 890 F.2d at 385
    (11th Cir. 1989). Because
    Cohen only needed to establish that World Omni was a state actor under one test,
    we do not consider whether the public function or nexus/joint action tests are met.
    See 
    Willis, 993 F.2d at 840
    . Based on the above, the first factor weighs in Cohen’s
    favor despite the district court’s contrary finding.
    The second factor, a defendant’s offer to settle, weighs in World Omni’s
    favor. Although there is no evidence regarding settlement offers in the record,
    19
    World Omni asserted in its motion for attorneys’ fees that it had not made a large
    settlement offer.
    The third factor, whether the case proceeded to trial, weighs in World
    Omni’s favor because the grant of summary judgment was ultimately upheld,
    precluding trial.
    The fourth factor, the attention given to Cohen’s claim, weighs in Cohen’s
    favor. Both we and the district court have given this case careful attention in
    deciding issues related to the district court’s jurisdiction, the doctrines of res
    judicata and collateral estoppel, and whether the claim was timely. The district
    court also held a hearing on the motion for summary judgment and considered the
    merits of Cohen’s claim both in ruling on a motion to dismiss and in ruling on a
    motion for summary judgment.
    In sum, two factors weigh in Cohen’s favor, and two factors weigh in World
    Omni’s favor. The district court abused its discretion in weighing the factors
    regarding the alleged frivolity of Cohen’s claim because the factor regarding the
    merits of Cohen’s claim weighs in his favor. That is, Cohen’s claim is not
    frivolous because he established a prima facie case. See 
    Quintana, 414 F.3d at 1307
    .
    Additionally, the court erred in finding that Cohen’s claim was frivolous in
    20
    part because it was time barred. The court relied on Munshi, a case from the
    Southern District of New York, which is not binding on us. We have not
    previously considered whether a time-barred claim is frivolous under § 1988, and
    we decline to do so here, where Cohen established a prima facie case. See
    
    Quintana, 414 F.3d at 1307
    .
    For the foregoing reasons, we vacate the district court’s order granting
    World Omni attorneys’ fees and remand for entry of an appropriate order.
    VACATED AND REMANDED.
    21