McCall, et al. v. Houston County, et al.
OPINION. Signed by Honorable Judge Myron H. Thompson on July 2, 2015. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
TRACEY McCALL, as
administratrix of the
estate of Jonathan McCall, )
KEITH REED, et al.,
CIVIL ACTION NO.
As the administratrix of the estate of decedent
Keith Reed, Corrections Deputy James West, and Licensed
Practical Nurse Ashley Kennedy.
The plaintiff asserted
both a federal claim pursuant to 42 U.S.C. § 1983 (that
McCall’s serious medical needs caused his death in the
Houston County Jail, in violation of the United States
Subject-matter jurisdiction was proper under 28 U.S.C.
§§ 1331 (federal question), 1343(a)(3) (civil rights),
and 1367 (supplemental).
After the parties settled, a
judgment was entered dismissing and closing the case.
The parties now ask the court to set aside that
judgment pursuant to Federal Rule of Civil Procedure
60(b), add decedent McCall’s minor beneficiary
interests of the minor, find that the settlement is
consents to all of these requests.
This case arises out of Jonathan McCall’s death in
the Houston County Jail.
McCall’s estate claimed that
personnel at the Houston County Jail.
decedent McCall as his conditioned worsened, stating
that he had a mental illness and “insanity never killed
anyone” or, at the least, “I’m not messing with him.
There’s no cure for crazy.”
Houston Cnty., 2014 WL 3045552, at *2 (M.D. Ala. 2014)
medicine several days before he died and that, on the
though he “was lying in his urine, unresponsive, and
Id. at *3.
As relevant here, after the court granted in part
and denied in part the defendants’ motion for summary
judgment, McCall v. Houston Cnty., 2014 WL 3045552, at
*19, the parties reached a settlement in August 2014,
and, in September of that year, the court entered a
judgment dismissing this case.
While the plaintiff has
settlement is actually McCall’s child, who is a minor
and was not a party to this litigation.
The parties settled for $ 500,000.
This was the
full amount of the insurance policy for the defendants.
received $ 250,000 in attorney’s fees and $ 41,633.87
The estate was left with $ 208,366.12.
Following the settlement, the parties intended to
ask the Houston County Probate Court to conduct a pro
probate court appointed a guardian ad litem for the
However, in October 2014, the Alabama Supreme
jurisdiction in the distribution of settlements from
3d ----, 2014 WL 5311315, at *10 (Ala. 2014).
off from the probate court, the plaintiff, joined by
defendants, asked this federal court to set aside the
earlier dismissal and conduct a pro ami hearing.
As detailed in the court’s prior opinion, McCall v.
whether the court could set aside the final judgment
under Rule 60(b) in order to conduct a pro ami hearing,
given that the minor was not a party to the litigation.
whether the court should set aside the motion as well
settlement was fair to the minor, the court appointed a
Id. at *4.
The defendants agreed to pay
the guardian’s fees.
The court held a subsequent hearing on this issue
whether the settlement was fair, just, and reasonable.
During this hearing, the guardian stated that, after a
defense counsel, the circumstances of this case merit
granting the motion to set aside the final judgment and
joining the minor as a party.
All parties and the
guardian stated that the settlement was fair, just, and
reasonable and in the best interest of the minor.
II. THE RULE 60(b) MOTION AND JOINDER
OF THE MINOR AS A PARTY
A. Legal Standards
procedural vehicle for obtaining relief from a final
The rule lists five defined circumstances
case, provides a catch-all provision.
Fed. R. Civ. P.
allows the relief from final judgment in a federal case
for “any other reason [in addition to the five listed]
Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000),
this catch-all provision creates a ‘grand reservoir of
equitable power to do justice in a particular case.’
Nisson v. Lundy, 975 F.2d 802, 806 (11th Cir. 1992).”
3876764, at *2 (M.D. Ala. 2008) (Thompson, J.).
Fed. R. Civ. P. 60(c)(1).
Under Federal Rule of Civil Procedure 20 governing
“Persons may join in one action as
plaintiffs if: (A) they assert any
right to relief jointly, severally, or
in the alternative with respect to or
arising out of the same transaction,
occurrence, or series of transactions
or occurrences; and (B) any question
plaintiffs will arise in the action.”
Charles Wright, Arthur Miller, et al., 7 Fed. Prac. &
Proc. Civ. § 1652 (3d ed.).
In this case, the question whether the court should
beneficiary can be joined as a party.
If the minor has a proper cause of action in this
case, she could, without a pro ami hearing, disaffirm
McCall v. Reed, 2015 WL 3397831, at
However, if the minor does not have an interest in
party--there would be no reason for a pro ami hearing
because the minor would have no legal interest in the
The court will grant relief from final judgment
relief, the pro ami hearing, would have any effect; if
not, there would be little reason to use the court’s
As discussed at length in the prior opinion, it is
unclear whether a minor is a proper party in an action
McCall v. Reed, 2015 WL 3397831, at *2.
It is particularly complicated because the rationale
for minors not being parties to wrongful-death cases in
damages in these cases based on a deterrence theory
rather than compensatory damages for the family, but
the Eleventh Circuit Court of Appeals has found that
actions brought under 42 U.S.C. § 1983 must allow for
Id. (citing Gilmere v. City of
Atlanta, Ga., 864 F.2d 734, 740 n.7 (11th Cir. 1989)).
In other words, binding circuit law undercuts the logic
for excluding minors as parties in cases that allege
colorable contention that the minor beneficiary has a
right to relief jointly with the administratrix and
that the questions of fact about McCall’s death and the
liable are common to both the estate and the minor.
See Fed. R. Civ. P. 20.
The minor is a proper party
who can be ‘permissively joined.’
The next issue is whether, even if the minor is a
relief from the judgment in order to join the minor and
conduct a pro ami hearing.
As noted in the prior
opinion, “[t]he parties ... have a direct interest in
having the current judgment (which, according to them,
is not binding on the minor) set aside so that the
judgment (which, according to them, would be binding on
the minor).” McCall v. Reed, 2015 WL 3397831, at *3.
Indeed, “[f]rom the parties' perspective, it appears
clear that it is to their advantage for the court to
set aside the dismissal judgment and hold a pro ami
The question that remained was whether
the minor beneficiary shared that interest, id., and
judgment should be set aside.
The court agrees with the parties and the guardian
When the minor is the sole beneficiary of a
settlement, she should be protected through a pro ami
Moreover, because settlement agreements are
leaving the current judgment in place would risk the
minor challenging the settlement when she reaches the
age of majority.
See id. at *2 (noting that minor can
disaffirm a contract).
Running that risk would hurt
the minor as well as the parties.
Parties would be
litigation could drag on and the minor may not receive
specifically here, “it may be that, for a minor who has
status quo would not be in the minor's best interest,
for it could lead to further ligation (including an
effort by the defendants to have the judgment set aside
as unfair and then to litigate this case on merits)
that could put the settlement, and, in particular, the
including entanglement in long-term litigation.” McCall
v. Reed, 2015 WL 3397831, at *4.
minor has a legal claim at all in this case, the minor
has an interest in ensuring some protection now by the
risking having no protection later if a court denies
the minor’s attempt to disaffirm the settlement.
judgment, join the minor beneficiary to the case, and
address the fairness of the settlement.
APPROVAL OF SETTLEMENT
heard a detailed explanation of the settlement, the
court finds that all the terms and provisions of the
proposed settlement are in the best interests of the
minor child and are fair, just, and reasonable under
the circumstances involved in this case.
this conclusion for several reasons.
First, the decision to settle was logical.
uncertain results at trial.
It was a prison-litigation
case where there were no witnesses to McCall’s death
would have to overcome these hostile witnesses as well
as federal and state immunity at trial to prevail.
the other hand, the defendant nurse responsible for the
corrections officer to have said that she “can’t cure
Additionally, no one from the jail medical
staff acted while he was dying on the ground in a pool
of his urine.
Bad facts and uncertain law for both
sides led to settlement.
Second, the settlement amount was reasonable.
defendants’ insurance policy would pay, and none of the
As the insurance policy has already paid
collection of a judgment.
Third, although a 50 % contingency fee is on the
high end, it is reasonable in this case.
v. Athens Reg’s Med. Ctr., 917 F.2d 1560, 1569 (11th
Cir. 1990) (approving 50 % contingency fee over the
objection of at least one expert given the difficulty
of a case); Large v. Hayes by and through Nesbitt, 534
contingency fee has been upheld as a matter of law).
To decide whether attorney’s fees are reasonable, the
court is required to determine the “lodestar” figure or
“the product of the number of hours reasonably expended
to prosecute the lawsuit and the reasonable hourly rate
for work performed by similarly situated attorneys in
F.Supp.2d 1158, 1161 (M.D. Ala. 2007) (Thompson, J.)
(citing Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988)). The fee applicant bears
the burden of “establishing entitlement and documenting
the appropriate hours and hourly rates.” Id. at 1162
(quoting Norman, 836 F.2d at 1303).
In determining the
forth in Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717–19 (5th Cir. 1974) (abrogated on other
grounds, see Blanchard v. Bergeron, 489 U.S. 87, 109
S.Ct. 939, 103 L.Ed.2d 67 (1989))1 and then proceeds to
adjusted upwards or downwards.” Simpleville Music, 511
717-19)2; see also Developers Sur. & Indem. Co. v. Old
1. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent all of the
decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
2. These 12 Johnson factors are: (1) the time and
labor required; (2) the novelty and difficulty of the
questions; (3) the skill required to perform the legal
employment by the attorney due to acceptance of the
case; (5) the customary fee in the community; (6)
whether the fee is fixed or contingent; (7) time
limitations imposed by the client or circumstances; (8)
the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys;
(10) the “undesirability” of the case; (11) the nature
and length of the professional relationship with the
Towne Station, LLC, 2010 WL 3258617, at *1 (M.D. Ala.
2010) (Thompson, J.).
The lodestar figure for the plaintiff’s counsel is
calculated it as follows:
C. Neville Reese
Neither the defense counsel nor the guardian ad
litem objects to this lodestar figure.
Even if the
hourly figures were high, the total lodestar is almost
twice what the plaintiff’s counsel will be paid.
addition to the lodestar being much higher than the
attorney’s fees, other factors weigh towards approving
these contingency fees.
As discussed above, this is a
client; and (12) awards in similar cases.
F.2d at 717–19.
high risk case: constitutional torts cases under 42
U.S.C. § 1983 are difficult to prove in general and
prison-litigation cases often more so given the lack of
Without higher contingency fees, lawyers
plaintiff submitted an affidavit noting how she
told it would be nearly impossible to find a lawyer and
how another lawyer from a national plaintiff-side law
firm investigated and then turned down the case due to
Additionally, all parties and the guardian
ad litem agree that this is a fair amount and in the
interest of the minor.
that the guardian ad litem described on the record to
be in the best interest of the minor.
The minor will
be able to petition to access the funds, but the funds
will be kept by a fiduciary until the minor reaches the
age of majority.
reasonable and in the best interest of the minor.
Appropriate orders will be entered.
DONE, this the 2nd day of July, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE
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