Parker v. Ethosenergy Power Plant Services, LLC, et al.

Filing 70

ORDER signed by Senior Judge William B. Shubb on 1/10/18 GRANTING 55 Motion for Attorney Fees. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP PARKER,

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Plaintiff,

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Civ. No. 2:16-00238-WBS-AC

v.
ETHOSENERGY POWER PLANT
SERVICES, LLC., et al.,

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ORDER RE: MOTION FOR ATTORNEY’S
FEES

Defendants.

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Defendant John Wood Group, PLC (“John Wood”) asks the

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court to exercise its discretion under 28 U.S.C. § 1927, Local

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Rule 293, California Labor Code 12965(b), and Federal Rule of

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Civil Procedure 37(c)(2) to award attorney’s fees following this

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court’s order to grant John Wood’s Motion for summary judgment.

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(Docket No. 49).

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I.

Factual and Procedural Background
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Plaintiff Phillip Parker (“Parker”) sued EthosEnergy

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Power Plant Service, LLC (“EthosEnergy”), his former employer,

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alleging wrongful discharge in violation of public policy,

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harassment, discrimination, and retaliation under the Fair

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Employment and Housing Act (“FEHA”).

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Wood as a defendant.

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both defendants on October 4, 2017, and the case was dismissed

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with prejudice.

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II.

Plaintiff also named John

Summary judgment was granted in favor of

(Docket No. 49.)

Discussion

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Federal courts have the inherent power to impose

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sanctions.

Zapata v. Flintco, Inc., Civ. No. 2:09-3555, 2012 WL

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260027, at *5 (E.D. Cal. Jan. 25, 2012) citing Chambers v. NASCO,

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Inc., 501 U.S. 32, 43-46 (1991).

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any attorney “who so multiplies the proceedings in any case

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unreasonably and vexatiously may be required by the court to

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satisfy personally the excess costs, expenses, and attorneys’

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fees reasonably incurred because of such conduct.”

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fees is also appropriate where counsel acted in bad faith.

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United States v. Blodgett, 709 F.2d 608, 610 (9th Cir. 1983).

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“Bad faith is present when an attorney knowingly or recklessly

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raises a frivolous argument.”

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of Sup’rs, 106 F.3d 409 (9th Cir. 1997).

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frivolous where a reasonable and competent inquiry into the law

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and facts would have revealed that a claim was not well-founded.

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Great Dynasty Int’l Fin. Holdings Ltd. v. Haiting Li, No. C-13-

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1734 EMC, 2014 WL 3381416, at *7 (N.D. Cal. July 10, 2014).

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Further, in response to a FEHA claim, a prevailing defendant may

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recover attorney’s fees when “the plaintiff’s action was

28 U.S.C. § 1927 provides that

A sanction of

Stiglich v. Contra Costa Cty. Bd.

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Conduct is reckless and

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frivolous, unreasonable, without foundation, or brought in bad

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faith.”

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(2010); Rezaipour v. County of Los Angeles, Civ. No. 12-5005 MWF,

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2014 WL 12687111, at *2 (C.D. Cal. Aug. 26, 2014).

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Chavez v. City of Los Angeles, 47 Cal. 4th 970, 985

Here, plaintiff named John Wood as a defendant without

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presenting any evidence to support his decision to do so.

In

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fact, while plaintiff admitted that EthosEnregy was his employer,

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not once did he point to any evidence indicating that John Wood

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was his employer as well.

Plaintiff conceded that he had no

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knowledge regarding the corporate structure of John Wood, and

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admittedly never researched the corporate structure or ownership

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of EthosEnergy, despite the fact that this information is a

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matter of public record.

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Def.’s Mot. for Atty’s Fees (“Crow Decl.”) ¶ 13, Ex. 6 (Parker

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Dep. at 39-40).)

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plaintiff offered absolutely no evidence to support the inclusion

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of John Wood in this lawsuit.

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(Decl. of Heather Crow in Supp. of

As this court has previously recognized,

(Docket No. 49 at 23.)

Additionally, John Wood’s counsel conferred with

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plaintiff’s counsel on numerous occasions and explained that John

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Wood was a separate entity from EthosEnergy and that John Wood

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had not been plaintiff’s employer at any point.

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4.)

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plaintiff’s counsel that John Wood was a separate entity and thus

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an improperly named party.

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emailed plaintiff’s counsel to again explain these facts, and

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even included the public filings of each company to demonstrate

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that they were in fact separate entities.

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Days later, on July 18, 2016, John Wood reached out to

(Crow Decl. ¶

Specifically, on July 12, 2016, John Wood’s counsel notified

(Id. at ¶ 5.)

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On July 13, John Wood

(Id. at ¶ 6, Ex. 1.)

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plaintiff’s counsel yet again, this time regarding voluntary non-

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suit of John Wood.

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explicitly asked plaintiff’s counsel to voluntarily dismiss John

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Wood to avoid the expense of filing a motion to dismiss. (Id. at

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¶ 8, Ex. 3.)

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contacted plaintiff’s counsel to explain that John Wood never

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employed plaintiff and to reiterate its request of nonsuit and

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the avoidance of incurring additional expenses.

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Ex. 4.)

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(Id. at ¶ 7, Ex. 2.)

On July 27, John Wood

A month later, counsel for John Wood again

(Id. at ¶ 10,

Despite all of John Wood’s attempts, plaintiff

continually refused to dismiss this defendant.

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The court finds that plaintiff’s naming of John Wood as

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a defendant, despite the fact that John Wood was clearly not

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plaintiff’s employer, was unreasonable and without foundation,

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and yet plaintiff “continued to litigate after it clearly became

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so.”

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(1978).

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faith in bringing this lawsuit, the court need not address

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whether plaintiff acted in bad faith because that is not the

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test.

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defendant if it finds that the plaintiff’s action was frivolous,

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unreasonable, or without foundation, even if it was not brought

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in subjective bad faith.

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finds that defendant is entitled to the $17,612.01 it expended on

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attorney’s fees and costs during the defense of this lawsuit,

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plus the additional fees incurred in the preparation of this

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motion.

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Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22
Although plaintiff argues that he did not act in bad

Rather, a court may grant attorney’s fees to a prevailing

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Id. at 421.

Accordingly, the court

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Defense counsel represented both John Wood and
EthosEnergy. However, the court has reviewed the attorney’s fees
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IT IS THEREFORE ORDERED that defendant’s Motion for

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Attorney’s Fees (Docket No. 55) be, and the same hereby is,

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GRANTED.

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the additional fees incurred in the preparation of this motion.

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Dated:

Plaintiff is ordered to pay defendant $17,612.01, plus

January 10, 2018

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and expenses (Crow Decl. ¶ 18, Ex. 8) and is satisfied that the
services for which the fees have been charged relate only to the
defense of John Wood and were not for the benefit of co-defendant
EthosEnergy. Additionally, plaintiff has not argued that the
fees have not been sufficiently separated between the defendants.
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