Evans v. Books-A-Million
MEMORANDUM OPINION. Signed by Judge C Lynwood Smith, Jr on 11/28/2012. (AHI )
2012 Nov-28 AM 11:38
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
Civil Action No. CV-07-S-2172-S
This case is before the court on a motion by plaintiff, Tondalaya Evans, to alter
or amend the memorandum opinion and judgment entered on October 29, 2012.1
Plaintiff objects to the amount of her attorneys’ fees award.2 The court reduced the
amount of that fee award when it perceived that plaintiff had opportunistically taken
inconsistent positions during litigation regarding the length of the statutory penalty
that should be imposed for a violation of the Consolidated Omnibus Budget
Reconciliation Act of 1985, 29 U.S.C. § 1161 et seq.3 Plaintiff contends that the court
erroneously found that she took inconsistent positions and, therefore, no grounds for
reducing the fee award existed.4
Doc. no. 53 (Motion to Alter or Amend).
Id. at 7, 11.
See doc. no. 51 (Memorandum Opinion entered Oct. 29, 2012), at 16-20, 47-49, 51-52.
Doc. no. 53 (Motion to Alter or Amend), at 1-2, 4-5, 7, 11. Plaintiff also argues that the
court incorrectly applied the doctrine of judicial estoppel, and that the court’s reduction of attorneys’
I. LEGAL STANDARDS
A motion to alter or amend a judgment is governed by Federal Rule of Civil
Procedure 59(e). That Rule states that “[a] motion to alter or amend a judgment must
be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
Plaintiff complied with that deadline: the court entered its judgment on October 29th,
and plaintiff filed her motion the following day.5
Rule 59(e) is silent regarding the substantive grounds for a motion to alter or
amend. Even so, courts have identified three circumstances that may justify granting
such motions: (1) an intervening change in controlling law; (2) newly available
evidence; and (3) the need to correct clear errors of law or fact. See Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007); In re Kellogg, 197 F.3d 1116, 1120 (11th Cir.
1999); Insituform Technologies, Inc. v. Americk Supplies, Inc., 850 F. Supp. 2d 1336,
1349 (N.D. Ga. 2012); Sussman v. Salem, Saxon & Neilsen, P.A., 153 F.R.D. 689, 694
(M.D. Fla. 1994). The present motion implicates only the last ground described.
This court entered a memorandum opinion and judgment on October 29, 2012,
following a bench trial. The sole issue at trial was whether defendant, Books-A-
fees as a Rule 11 sanction did not meet the requirements of that Rule.
See doc. no. 51 (Memorandum Opinion entered Oct. 29, 2012); doc. no. 52 (Judgment
entered Oct. 29, 2012); doc. no. 53 (Motion to Alter or Amend).
Million, violated the Consolidated Omnibus Budget Reconciliation Act of 1985, 29
U.S.C. § 1161 et seq. (“COBRA”), by failing to notify plaintiff of her statutory rights
after defendant terminated plaintiff’s employment.6
The court concluded that
defendant did violate COBRA, and then set about determining the appropriate length
and amount of the statutory penalty.7
The court ultimately determined that the COBRA penalty period ended eighteen
months after plaintiff’s termination.8 A similar ending date had been endorsed in two
Eleventh Circuit opinions: i.e., Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223
(11th Cir. 2002); and Wright v. Hanna Steel Corp., 270 F.3d 1336 (11th Cir. 2001).9
Notably, plaintiff does not challenge the penalty period end-date. In fact, her motion
to alter or amend twice affirms that the duration of the penalty is committed to the
discretion of the trial court.10
In addition to relying on Scott and Wright, this court also noted that “both
parties agree that the eighteen-month period during which COBRA coverage could
See doc. no. 51 (Memorandum Opinion entered Oct. 29, 2012), at 1-2; Trial Tr. 3-5, Aug.
See doc. no. 51 (Memorandum Opinion entered Oct. 29, 2012), at 4-15.
Id. at 25.
Id. at 23-24.
See doc. no. 53 (Motion to Alter or Amend), at 3 (“Because the duration of the penalty is
left to the sound discretion of the Court . . .”.) & n.1 (“[T]he end date is left to the discretion of the
have continued provides a permissible cut-off date.”11 That observation was based on
two facts. First, defendant claimed that an end-date eighteen months from the date of
plaintiff’s termination would set an appropriate outer limit for the penalty period.12
Second, even though plaintiff’s post-trial brief contended that the end-date should be
the date of trial,13 this court — applying the doctrine of judicial estoppel — found that
plaintiff had previously argued for an eighteen-month penalty period.14 Specifically,
the court read plaintiff’s pre-trial list of damages as arguing that the penalty period
should cease eighteen months after the date of plaintiff’s termination.15 Thus, the
court viewed plaintiff as having taken inconsistent positions when her post-trial brief
argued that the end-date should be the date of trial.16
Moreover, because the
perceived change in plaintiff’s position occurred “only after the conclusion of trial,
and after the court orally indicated that it would rule in plaintiff’s favor,” the court
felt that plaintiff was attempting to “game the judicial system.”17 Consequently, the
court reduced plaintiff’s fee award by one-half as a Rule 11 sanction.18
Doc. no. 51 (Memorandum Opinion entered Oct. 29, 2012), at 20.
Doc. no. 48 (Defendant’s Post-Trial Brief), at 4-5.
Doc. no. 43 (Plaintiff’s Post-Trial Brief), at 6-7.
Doc. no. 51 (Memorandum Opinion entered Oct. 29, 2012) at 17-20.
Id. at 17 (quoting doc. no. 37 (Plaintiff’s List of Damages), at 6.).
Id. at 19; see doc. no. 43 (Plaintiff’s Post-Trial Brief), at 15.
Doc. no. 51 (Memorandum Opinion entered Oct. 29, 2012) at 17, 48-49 (emphasis in
Id. at 48-49.
Did Plaintiff Take Inconsistent Positions?
Plaintiff argues that she did not take inconsistent positions regarding the end-
date of the COBRA penalty period.19 If that contention is correct, then the grounds
for reducing the fees awarded to plaintiff’s attorneys do not exist.20 Because the issue
before the court turns directly on what arguments plaintiff made, it is expedient to
extensively quote from plaintiff’s briefs.
The court relied upon the following passage from plaintiff’s pre-trial list of
damages as evidence that she initially argued for a penalty end-date of eighteen
months after her termination.21 Boldface emphasis has been placed on the parts upon
which this court placed importance in reaching its conclusion.
In Rodriguez v. International College of Business and Technology,
Inc., 364 F. Supp. 2d 40, 50 (D. Puerto Rico, 2005), the court discussed
the way to calculate the penalty:
Doc. 53 (Motion to Alter or Amend), at 3-7.
Defendant opposes plaintiff’s motion on two grounds, neither of which aid the court’s
resolution of the motion. First, defendant essentially regurgitates the reasoning expressed in the
court’s memorandum opinion. See doc. no. 54 (Defendant’s Response to Motion to Alter or
Amend), at 1-2. Of course, that argument assumes that the answer to the issue in question —
namely, was the court’s previous reasoning correct? — is “yes.” Second, defendant urges the court
to uphold the fee award reduction not as a Rule 11 sanction, but on the entirely independent ground
that such a reduction justifiably accounts for plaintiff’s limited success in this case. Id. at 2-3. That
argument is not relevant to the issue presented by the instant motion. Moreover, the court already
accounted for plaintiff’s limited success when it initially reduced plaintiff’s lodestar amount by twothirds. See doc. 51 (Memorandum Opinion entered Oct. 29, 2012), at 46-47. The question now
under consideration is whether a further reduction was warranted as a Rule 11 sanction, not whether
the “lodestar adjustment” should be altered or amended.
Doc. no. 51 (Memorandum Opinion entered Oct. 29, 2012), at 16-17.
Statutory penalties are generally calculated from the last
date on which the plan administrator could have sent notice
until the end of the continuation coverage period. See
e.g., Lloynd v. Hanover Foods Corp., 72 F. Supp. 2d 469
(D. De[l]. 1999). Further, the qualifying event should be
calculated from the date of the occurrence of a status
change which makes inevitable the loss of such coverage,
even if the loss of coverage occurs sometime thereafter.
Gaskell v. Harvard Coop. Soc’y, 3 F.3d 495, 499 (1st Cir.
1993). In the case at bar, the qualifying event occurred on
June 18, 2003. From this date, International College had
forty-four (44) days to notify Ceinos of his right to continue
coverage under the group health plan. See Gonzalez
Villanueva v. Lambert, 339 F. Supp. 2d 351, 358-59 (D.
P.R. 2004). Therefore the clock began to tick on August 2,
2003, (the forty-fifth day after the qualifying event) and
stopped on December 18, 2004, (eighteen months after
the qualifying event which constitutes the maximum
period of continuation coverage allowed under
COBRA). This results in a total of five hundred and five
(505) days that International College was in breach of its
COBRA notification obligation, for a total statutory penalty
of $40,400.00. Plaintiff is also awarded reasonable
attorneys’ fees and costs.22
That argument is contained within a section of the pre-trial list of damages entitled
The next section of plaintiff’s pre-trial list of damages is entitled “Damages.”24
The first two paragraphs of that section discuss general principles of compensatory
Doc. no. 37 (Plaintiff’s List of Damages), at 6 (boldface emphases supplied).
Id. at 3.
Id. at 6.
damages,25 which are different from the punitive damages assessed under the COBRA
statute as a penalty. However, the final three paragraphs of the “Damages” section
abruptly revert to a discussion of the statutory penalty, a topic already addressed in the
section entitled “The Penalty”.
The reported decisions tend to award less than the maximum
allowed by the statute. Mere oversight tends to get smaller amounts,
while egregious conduct may justify amounts in the range of $50 or so.
In the case of Evans, because the Defendant had numerous
opportunities to provide the Plaintiff with notice and they failed on every
opportunity, then the penalty should be imposed at the maximum amount
for every day since the notice was due through the date of judgment.
Based upon an estimated 1900 days, we calculate that the total
amount of the penalty is $209,000.26
Plaintiff’s present argument is that this passage “set forth her [d]amages calculation”;
thus, her damages calculation presented before trial was consistent with her damages
calculation presented after trial.27
Id. at 6-7.
Id. at 7 (emphasis supplied).
Id. at 3, 5-7; see doc. no. 43 (Plaintiff’s Post-Trial Brief), at 15. Plaintiff notes that her
post-trial brief adjusted the end-date to the date of trial, rather than the date of judgment (as her pretrial brief argued). Doc. no. 53 (Motion to Alter or Amend), at 3. That change decreased, rather
than increased, the amount of plaintiff’s recovery. Thus, the court considers that change to be a
good-faith adjustment by plaintiff. The question is whether plaintiff inconsistently (and improperly)
attempted to expand the length of the penalty period once she knew how the court would rule after
trial, not whether she should be sanctioned for a technical inconsistency that reduced the length of
the penalty period.
After careful reconsideration of plaintiff’s pre-trial list of damages, the court
agrees that plaintiff did not argue for a penalty end-date of eighteen months from the
date of her termination: i.e., a period that was 506 days in length. Although the
organization of the plaintiff’s pre-trial brief may have been inartful, and was certainly
confusing to this reader, the court is persuaded that plaintiff did not initially seek an
eighteen-month penalty period, only to switch positions in her post-trial brief.
The present reading is supported by the final section of plaintiff’s pre-trial list
of damages, entitled “CONCLUSION,” which begins: “[a]s argued above, Plaintiff
seeks damages under COBRA in the amount of $209,000.”28 By referencing her
argument on the previous page and the monetary amount sought therein, plaintiff
made clear that she was not urging the court to set the penalty end-date in accordance
with Rodriguez v. International College of Business and Technology, Inc., 364 F.
Supp. 2d 40 (D. P.R. 2005), as the court originally thought. As plaintiff subsequently
explained, her reference to Rodriguez in “The Penalty” section of her pre-trial list of
damages was meant to inform the court how some courts had calculated the penalty,
and not how she urged this court to calculate it.29 Consequently, the stated grounds
for reducing plaintiff’s attorneys’ fee award do not exist, and plaintiff’s motion to alter
or amend the court’s memorandum opinion and judgment is due to be granted.
Doc. no. 37 (Plaintiff’s List of Damages), at 8.
Doc. no. 53 (Motion to Alter or Amend), at 5.
For the reasons stated, plaintiff’s motion to alter or amend the court’s
memorandum opinion and judgment is GRANTED. An amended judgment will be
entered contemporaneously herewith.
DONE and ORDERED this 28th day of November, 2012.
United States District Judge
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