Flournoy v. CML-GA WB, LLC et al, No. 1:2014cv00161 - Document 84 (S.D. Ga. 2016)
Court Description: ORDER denying Defendants' 71 Motion for Attorney Fees; and, denying as moot Plaintiff's 75 Motion for Oral Argument. Signed by Judge J. Randal Hall on 8/26/2016. (jah)
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Flournoy v. CML-GA WB, LLC et al Doc. 84 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OP GEORGIA AUGUSTA DIVISION PATRICIA C. FLOURNOY, * Plaintiff, * v. * CML-GA WB, LLC; RIALTO CAPITAL ADVISORS, LLC; REX PROPERTY AND LAND, LLC; and PAUL GREGORY KING, CV 114-161 * * * * * Defendants, ORDER Currently before the Court is Defendants CML-GA WB, and Rialto attorneys' DENIES Capital fees. Defendants' Advisors, (Doc. 71.) ("Defendants") Upon consideration, motion the for Court motion. I. Plaintiff LLC's LLC's initiated Background this action on July 29, 2014 and alleged that Defendants discriminated against her based on her race when Defendants' they denied building. for summary judgment, her (Doc. application 1.) to Eventually, lease space in Defendants moved which the Court granted on December 10, Dockets.Justia.com 2015. (Doc. January 8, moved are 28 for 62.) Plaintiff 2016. (Doc. attorneys' entitled to U.S.C. § 1927, 65.) fees. fees under and 42 filed On notice January (Doc. Rule 14, of appeal on 2016, Defendants Defendants 71.) Federal U.S.C. her claim they of Civil § 1988(b). Procedure 68, The Court addresses each of these separately below. II. As a preliminary Discussion matter, the Court notes Plaintiff has appealed the Court's ruling on for summary current Mgmt. judgment, motion Co., for it retains attorneys' 677 F.2d 64, 64-65 that, Defendants' jurisdiction fees. See (11th Cir. although to motion hear Rothenberg v. the Sec. 1982). 1. Defendants are not entitled to attorneys' fees under Federal Rule of Civil Procedure 68 because judgment was not entered in favor of Plaintiff. Under Rule 68, a defendant may make an offer of judgment to a plaintiff plaintiff on specified terms. rejects the offer Fed. and R. then Civ. P. 68. ultimately If the obtains a judgment that is "not more favorable than the unaccepted offer, the offeree made." Fed. must R. pay Civ. plaintiff obtains offer defendant the a obtains a judgment. the costs 68(d). incurred This rule judgment that is made; does not it after less applies v. when offer only favorable apply Delta Air Lines, Inc. the a August, was when than a the defendant 450 U.S. 346, 351-52 (1981) text of Rule the ("In sum, itself, if it is we limit clear that offers made by the defendant and only to the plaintiff.") ; La. 319, to 334 (5th Cir. defendant; 451 n.l 68 to 1995) in cases prevails Power a which & Light our Co. analysis it obtains the only to judgments obtained by v. Kellstrom, ("[T]he Supreme Court plaintiff applies to a 50 F.3d limited Rule judgment against 68 the the rule is not applicable when a defendant actually over the (3d Cir. recover plaintiff."); 1991) costs Landon v. ("[The defendants] in this case Hunt, 938 F.2d 450, could not rely on Rule because the district court dismissed the claim against them with prejudice."). In of this case, Defendants, so the Court granted summary judgment in favor Defendants are not permitted to recover costs or fees under Rule 68. request for attorneys' The Court, therefore, DENIES Defendants' fees under Rule 68. 2. Defendants are not entitled to attorneys' fees under 28 U.S.C. § 1927 because they have not produced any evidence that Plaintiff's attorneys acted unreasonably or vexatiously. Defendants move for attorneys' fees under 28 U.S.C. § 1927, which provides: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys1 fees reasonably incurred because of such conduct. 28 U.S.C. § 1927. For an award under § 1927 to be proper, attorney must engage in unreasonable and vexatious conduct; conduct must multiply the proceedings; and the amount "an this of the sanction cannot exceed the costs occasioned by the objectionable conduct." Peer v. (citation omitted) standard is met egregious that Lewis, (internal "only it 606 F.3d 1306, is quotation when the tantamount 1314 marks to bad recklessly omitted) a frivolous This conduct faith [,]" is "is which so an attorney knowingly claim." Id. (citations (internal quotation marks omitted). Here, § 1927 pursues 2010) omitted). attorney's objective standard that is satisfied when an or (11th Cir. Defendants because claim they Plaintiff's are entitled attorneys pursuing this frivolous action. acted The Court, to fees under recklessly however, in disagrees. Although the Court determined that Plaintiff's claim failed as a matter of law, it declines was "so egregious that it 606 F.3d omitted). that at Accordingly, 1927. the her attorney's conduct omitted) (internal Peer, quotation marks there is simply no evidence before the Court that tactics find that [was] tantamount to bad faith." (citation Further, indicates dilatory § 1314 to or Plaintiff's multiplied attorneys any ever engaged proceeding. Court DENIES Defendants' motion for in See any id. fees under 3. Defendants are not entitled to attorneys' fees under 42 U.S.C. § 1988 because they did not timely file their motion. Under statute Federal or attorneys' a Rule court fees] of order applies U.S.C. to at applied Rule for Home *1 provides 54, otherwise, "[u]nless [a motion Fed. R. Civ. P. 54(d)(2)(B).1 motions § 1988. 313902, Procedure a for must ... be filed no later than 14 days after the entry of judgment." 54 Civil (6th v. attorneys' Hamilton, Cir. May 54 (d) (2) (B) 's 3, fees Ph., 181 1999) fourteen brought F.3d time under 101, ("Numerous day And Rule 1999 courts limit 42 to WL have § 1988 motions for attorney's fees."). Here, and judgment was Defendants (doc. — for attorneys' thirty-five 14, 2016 January Nor have under Rule 6(b). Romaguera v. Defendants claim because, counsel via that Defendants' the See they e-mail, she SDGa. R. complied intended to based entry on Civ. 893 excusable neglect Instead, citing 6(b). F.3d with Defendants' the purpose counsel request (5th Cir. of informed fees. In Court case before also untimely under the 1998), Rule 54 (d) Plaintiff's that "I thought you might want to Supreme Defendants motion was See LR 54.2, time 162 counsel stated: U.S. of Fed. Gegenheimer, attached 1 extension the 63), Defendants do not argue that their motion was timely. an after on (doc. judgment. requested days fees 2015 of they 71) moved entered on December 10, e-mail, review dismissing Court's local our rule. ability to pursue attorneys' fees. I'm sure you are aware that Section 1988 equally applies to 1981 claims." (Doc. 79-1 at 1.) While this correspondence may show that Plaintiff was aware that Defendants planned distinguishable order to from accompanying than the a fees days motion granted. Id. at district court's satisfied Rule stated that Id. entry the at of attorneys' 894-95. fees, issue, district the it acknowledgment "[h]ad refrained hearing. the from the Court intention Id. giving to Subsequently, more judgment, the the plaintiff district court plaintiff's request at the 896. court] Indeed, not impression [the plaintiff] not entered any seek attorneys' fees the Fifth addressed that a a the hearing would have been Id. order or recognizing scheduled any And "[t]he fact that the parties were well aware that intended indeterminate date the had that 895. the [district has [Defendants] with court's plaintiffs required to file the motion under Rule 54(d)(2)." Defendants' easily would address which of would be scheduled by the court, Here, is 54 and the plaintiff's motion merely served as noted, or it The Fifth Circuit determined that the reminder to the district court. Circuit the and noted that after for fees, There, judgment a separate hearing. fourteen filed attorneys' Romaguera. requested attorneys' request at seek in applicable to the file future procedural a does rules." fees not motion excuse Bender at some noncompliance v. Freed, 436 F.3d 747, 750 omitted). (7th Cir. Defendants, motion for attorneys' judgment. 2006) therefore, (internal were quotation required to marks file their fees within fourteen days from the date of Because they failed to do so, the Court DENIES their motion as untimely. 4. Defendants would not be entitled to attorneys' fees, even if they had timely filed their motion, because Plaintiff's claim was not "frivolous, unreasonable, or without foundation." Under this one, § 1988, 42 proper foundation." The 1188 case; trial (2) . the . as part An award of 1985) the Id. Bd. as was Pinellas when plaintiff or without Cty., 773 court offered dismissed 1189. But a to a frivolity prima settle; the is not and (3) to frivolous Rather, "a district court In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of facie prior case claim F.2d omitted). evaluating established the finding that (internal quotation marks defendant at "upon a of attorneys' unreasonable, of considers the trial ." frivolous, Sch. Court whether . v. whether the fee merely because it ultimately failed.2 2 § 1981, § 1988(b). lawsuit was (11th Cir. "(1) whether under attorney's U.S.C. Sullivan factors include: brought for a prevailing defendant the plaintiff's 1182, action reasonable costs . . . ." is an the Court "in its discretion, may allow the prevailing party ... a fees in hindsight logic could must focus on the question whether the case is so lacking in arguable merit as to be groundless or without foundation rather than whether was "[a] claim the is claim not ultimately frivolous when it successful." is receive careful attention and review." F. App'x , 2016 WL (citation omitted) Here, 1426013, at *1 meritorious 0'Boyle v. (11th Cir. Id. And enough to Thrasher, Apr. 12, 2016) determined that (internal quotation marks omitted). although the Court ultimately Plaintiff failed to establish a prima facie case, it declines to award claim Defendants attorneys' wholly lack arguable review from the merit Court. fees. and Plaintiff's demanded Moreover, as careful noted made an offer of judgment to Plaintiff.3 motion on this not attention and above, Defendants Because Plaintiff's claim was not frivolous enough to warrant fees, Defendants' did the Court DENIES issue. discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit. Sullivan, 434 U.S. 773 412, F.2d 421-22 at 1188-89 (quoting Christiansburg Garment Co. v. EEOC, (1978)). 3 While this offer was for only $1,500 (doc. 74-11), Plaintiff correctly points out that, had she accepted it, she would have potentially been entitled to more than that amount because the offer did not include costs, and as a prevailing party, Plaintiff could have sought attorneys' fees under § 1988 as part of her costs. See Utility v. Automation 2000, Inc. v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238, 1241 (11th Cir. 2002). III. For the reasons motion for attorneys' Conclusion stated above, fees (doc. the Court DENIES 71.) Additionally, Defendants' Plaintiff's motion for oral argument is DENIED AS MOOT. ORDER ENTERED at Augusta, Georgia this OjU^ciay of August, 2016. HO^ORABLE^D". RANDAL HALL UNlTEIf STATES DISTRICT JUDGE ]RN DISTRICT OF GEORGIA
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