Timmons v. Lockheed Martin Corp.

Filing 43

ORDER denying 37 Motion for Attorneys' Fees, and granting in part Lockheed's request for attorneys fees 42 , by Judge Christine M. Arguello on 1/22/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-03408-CMA-KMT
CHARLOTTE TIMMONS,
Plaintiff,
v.
LOCKHEED MARTIN CORP.,
Defendant.

ORDER GRANTING IN PART DEFENDANT’S REQUEST FOR
ATTORNEYS’ FEES PURSUANT TO 28 U.S.C. § 1927

This matter is before the Court on Defendant’s Motion for Attorneys’ Fees. (Doc.
# 37.) For the following reasons, the Court grants in part and denies in part the motion.
I. BACKGROUND
Plaintiff Charlotte Timmons filed the complaint that initiated this litigation on
December 20, 2011, in which she advanced two claims. First, Ms. Timmons alleged
Defendant Lockheed Martin terminated her employment because of her age, in violation
of the Age Discrimination in Employment Act (“ADEA”). (Doc. # 1.) Second, she
alleged that Lockheed retaliated against her for complaining about age discrimination,
also in violation of the ADEA. (Id.) Lockheed moved for summary judgment on
December 7, 2012 (Doc. # 20), and Ms. Timmons filed her first response on January 3,
2013 (Doc. # 21). Due to multiple errors in that response, it was stricken. (Doc. # 28).

Ms. Timmons filed her amended response on January 21, 2013. (Doc. # 29).
In this filing, she failed to address Lockheed’s arguments attacking her discrimination
claim and only responded to argument related to her retaliation claim.
On June 7, 2013, this Court issued an order deeming Ms. Timmons’
discrimination claim abandoned and granting Lockheed’s motion for summary
judgmenton her retaliation claim. (Doc. # 35.) In granting summary judgment, the Court
observed the “egregious substantive and non-substantive failings of the response” filed
by Ms. Timmons’ attorney, Mr. Keiffer. (Id. at 6.) The analysis section of that response
was “devoid of citations to any legal authority,” and only two cases cited elsewhere in
the response even arguably supported Ms. Timmons’ claims. (Id. (emphasis in
original).) Along with the dearth of legal argument, the response included an incomplete
sentence on its first page, a five-paragraph quotation from an inapposite case, and
a quotation from a headnote from another inapposite case. (Id. at 7.) The Court
admonished Mr. Keiffer for “failing to provide any meaningful legal analysis and
argument” in its response to Lockheed’s summary judgment motion and for filing “one
of the most shoddily drafted” pleadings it had ever seen. (Id. at 7 n.4.) The magnitude
of Mr. Keiffer’s poor lawyering compelled the Court to provide Lockheed with an
opportunity to move for sanctions. (Id. at 13.)
Lockheed filed the instant Motion for Attorneys’ Fees on June 20, 2013, (Doc.
# 37), Ms. Timmons responded on June 28, 2013, (Doc. # 38), and Lockheed replied on
July 2, 2013, (Doc. # 39). On October 3, 2013, the Court directed the parties to brief
simultaneously whether attorneys’ fees should be awarded under 28 U.S.C. § 1927.
(Doc. # 40.) Both parties submitted their briefs on October 23, 2013. (Doc. ## 41, 42.)
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II. DISCUSSION
Normally, prevailing litigants in American courts may not collect attorneys’ fees
from their opponents. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.
240, 247 (1980). This so-called “American Rule” is “deeply rooted in our history and
congressional policy,” id. at 271, and is meant to avoid unnecessarily deterring parties
from attempting to vindicate their rights in a judicial forum. Fleischmann Distilling Corp.
v. Maier Brewing Co., 386 U.S. 714, 718 (1967).
Lockheed argues that this case falls within two exceptions to the rule. (See Doc.
## 37, 42.) Under the first exception, which is authorized by statute, courts may assess
fees for “the excess costs, expenses, and attorneys’ fees reasonably incurred” against
attorneys who have “multiplie[d] the proceedings in any case unreasonably and
vexatiously.” 28 U.S.C. § 1927. Under the second exception, courts may exercise
their inherent authority to assess fees against litigants who have acted in bad faith.
See Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991). The Court considers the
applicability of these two exceptions in turn and then considers the proper amount to
award.
A.

AWARDING ATTORNEYS’ FEES UNDER 28 U.S.C. § 1927
A § 1927 sanction may be appropriate when attorneys act in an “objectively

unreasonable” manner. Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202
(10th Cir. 2008). In exercising that judgment, attorneys should “regularly re-evaluate
the merits of their claims and . . . avoid prolonging meritless claims.” Steinert v. Winn
Grp., Inc., 440 F.3d 1214, 1224 (10th Cir. 2006) (citations omitted). Regardless of an
attorney’s subjective intentions, it is objectively unreasonable to continue asserting
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claims that have no factual or legal basis and thus reasonably should have been
dismissed voluntarily. Id.
Only a “serious and standard disregard for the orderly process of justice”
warrants a § 1927 sanction. Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1342 (10th Cir.
1998). Still, when appropriate, § 1927 provides an “essential tool to protect both
litigants and the ability of the federal courts to decide cases expeditiously and fairly.”
Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc). When imposing
a § 1927 sanction is appropriate, the Court must identify specifically the attorney’s
sanctionable conduct and the resulting expenses borne by Defendant, and it must
explain the reasons for imposing sanctions sufficiently to facilitate appellate review.
Hamilton, 519 F.3d at 1204.
In this case, it was “objectively unreasonable” for Mr. Keiffer to continue
pressing the retaliation claim after Lockheed filed its Motion for Summary Judgment.
Ms. Timmons lacked direct evidence that Lockheed acted with a retaliatory motive, and so
she had to establish a prima facie case of retaliation through reliance on indirect evidence.
See, e.g., Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1201 (10th Cir. 2008). One
necessary element of Ms. Timmons prima facie case was that she engaged in conduct
protected under the ADEA.
“[T]o qualify as protected opposition the [plaintiff] must convey to the employer his
or her concern that the employer engaged in a practice made unlawful by the ADEA.” Id.
Upon receiving Lockheed’s summary judgment motion, Mr. Keiffer should have known that
Ms. Timmons had no evidence that she had engaged in protected conduct. There was
simply no evidence that she opposed any conduct prohibited by the ADEA prior to her

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termination. Ms. Timmons’ deposition revealed that she complained about another

employee’s promotion over her and the low performance ratings she received. (Doc.
# 29 at 16.) She also complained that her supervisor harassed her, created a hostile
environment, and made her life difficult. But all of these allegations lacked the key
ingredient for Ms. Timmons’ retaliation claim: some communication to Lockheed that
she thought Lockheed had engaged in conduct prohibited by the ADEA. (Doc. # 20-1
at 9.) Thus, even if Lockheed fired Ms. Timmons because of her complaints, it did not
constitute retaliation proscribed by the ADEA. Cf. Hinds, 523 F.3d at 1203 (holding
that “[g]eneral complaints about management and one’s own negative performance
evaluation” do not constitute protected conduct under the ADEA.).
In fact, when asked in her deposition, Ms. Timmons recalled only a single
instance of possible ageist comments. (Doc. # 20-1 at 12.) Three and a half years
earlier, she had overheard another employee, whose name she could not recall, say
that he felt like his age had something to do with him losing his job. She did not do
anything to oppose that possible discrimination (id.), did not recall hearing any other
ageist remarks while employed by Lockheed (id.), and conceded that the only time she
actually complained of age discrimination was after her termination. (Doc. # 29, at 7.)

Therefore, Mr. Keiffer had no factual basis to continue pursuing Ms. Timmons’
retaliation claim.
Mr. Keiffer’s argument that the response he filed contained a cognizable legal
argument is unpersuasive. According to Mr. Keiffer, he attempted to persuade the
Court to extend case law from other jurisdictions where “filing an ethical complaint
was protected” conduct. (Doc. # 41 at 4.) Apparently, if the law were so extended,
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Ms. Timmons’ ethics complaints—which Mr. Keiffer attempted to cast as “protected free
speech”—would qualify as protected conduct even though they were unrelated to age
discrimination. (See Doc. # 29 at 19.) Even a brief reading of the cases cited by
Mr. Keiffer reveals that this argument lacked any legal basis.
In particular Mr. Keiffer cited Thomas v. Ragland, 324 F. Supp. 2d 950 (W.D. Wis.
2004), which involved a city employee’s allegations that her supervisor and municipality
employer retaliated against her in violation of Title VII and the First Amendment. (Doc. # 29
at 3.) There, the court distinguished conduct that is protected by the First Amendment
because it occurred in the “public employment context” from the “more limited” scope of
protected activity under Title VII. See id. at 967. Title VII, the court stated, prohibits
employers from retaliating against employees who have opposed discriminatory practices
“‘made unlawful under this subchapter.’” Id. at 971 (quoting 42 U.S.C. § 2000e-3(a)). Here,
Ms. Timmons was not a public employee and did not allege that she opposed discriminatory
practices prohibited by Title VII. The Thomas court did not mention the ADEA or age
discrimination. Therefore, it would have been readily apparent to a reasonable attorney
who read Thomas that it had no relevance to Ms. Timmons’ ADEA retaliation claim.
Mr. Keiffer also cited the Tenth Circuit’s opinion in Timmerman v. U.S. Bank, N.A.,
483 F.3d 1106, 1122-23 (10th Cir. 2007), for the proposition that, under Title VII and the
ADEA, “opposition to a discriminatory practice” is protected conduct. (Doc. # 29 at 3.) The
relevant passage in Timmerman cites Title VII and the ADEA, each of which describes
protected conduct as opposing employment practices made unlawful by its respective
subchapter. See Timmerman, 483 F.3d at 1122; see also 42 U.S.C. § 2000e-3(a); 29
U.S.C. § 623(d). The Timmerman plaintiff’s conduct was protected because it involved filing
a lawsuit alleging “sex and age discrimination.” Timmerman, 483 F.3d at 1123 (emphasis
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added). Thus, reading Timmerman would lead the reasonable attorney to understand that
“discriminatory conduct” means conduct prohibited by the relevant statute. But, as
emphasized above, Ms. Timmons had no evidence that she opposed conduct prohibited
by the ADEA.
In sum, Mr. Keiffer’s bare references to Thomas and Timmerman, with no
comprehensible supporting legal argument, did not form a legal basis for him to continue
pressing Ms. Timmons’ ADEA retaliation claim. As a result, the Court concludes that
Mr. Keiffer acted in an objectively unreasonable manner meriting a § 1927 sanction.
Lacking any factual or legal basis, it would have been “reasonable and responsible” for him
voluntarily to dismiss Ms. Timmons’ retaliation claim. Steinert, 440 F.3d at 1224. He could
have abandoned the retaliation claim, as he did by failing to address Lockheed’s challenges
to Ms. Timmons’ discrimination claim. (See Doc. # 29.) However, by continuing to press
the retaliation claim, Mr. Keiffer demonstrated a “serious and standard disregard for the
orderly process of justice.” Miera, 143 F.3d at 1342. Because he “unreasonably and
vexatiously multipl[ied] the proceedings” related to that claim, he must bear Lockheed’s
corresponding attorneys’ fees under § 1927.

B.

AWARDING ATTORNEYS’ FEES UNDER THE COURT’S INHERENT POWER
The “bad faith” exception to the American Rule exists for cases in which “the

losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.”
Alyeska, 421 U.S. at 258 (citations and quotation marks omitted). In those cases,
courts may exercise their “inherent power” to award fees in order to vindicate judicial
authority and compensate the prevailing party for expenses caused by the opponent’s
obstinacy. Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (citation omitted).
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The “bad faith” exception extends to prevailing defendants in Age Discrimination in
Employment Act (“ADEA”) cases. See, e.g., Bennett v. Coors Brewing Co., 189 F.3d
1221, 1238 (10th Cir. 1999).
But this “exceedingly narrow” exception applies only when there is “clear
evidence” that the losing party’s claim was (1) “entirely without color” and (2) “asserted
wantonly, for purposes of harassment or delay, or for other improper reasons.” F.T.C.
v. Kuykendall, 466 F.3d 1149, 1152 (10th Cir. 2006) (citations and quotation marks
omitted). This “requires more than a weak or legally inadequate case.” Id. (quotation
marks and citation omitted). “Whether the bad faith exception applies turns on the
party’s subjective bad faith.” Id. (citation omitted). This “high bar” ensures that “‘those
with colorable, albeit novel, legal claims [are not] deterred from testing those claims in
federal court.’” Mountain W. Mines, 470 F.3d at 954 (quoting Sterling Energy, Ltd. v.
Friendly Nat’l Bank, 744 F.2d 1433, 1435 (10th Cir. 1984)).
In unusual cases, an extraordinarily meritless claim may satisfy the “subjective
bad faith” requirement. Sterling Energy, Ltd. v. Friendly Nat’l Bank, 744 F.2d 1433,
1437 (10th Cir. 1984). A claim that is “patently frivolous and that, like fraud, is also
opprobrious by nature and designed to cause embarrassment and humiliation” may
raise an inference of subjective bad faith. Id. at 1437. But even claims that “stretch[ ]
the bounds of reason” fall short of this standard. Mountain W. Mines, 470 F.3d at 954.
In Mountain West Mines, for example, the plaintiff claimed that it “was owed royalty
payments on land it ha[d] never owned by companies with which it ha[d] never entered
into a contract or agreement.” Id. Although the district court found the claims
“astound[ing],” the Tenth Circuit concluded that they were not “so frivolous as to reflect
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impermissible conduct” for purposes of allowing the district court to exercise its inherent
authority and impose an attorney’s fees sanction. Id. (citations and quotation marks
omitted).
In this case, even if Ms. Timmons had no “meaningful or admissible evidence”
to support her claims, as Lockheed argues (Doc. # 37 at 1), this does not establish
subjective bad faith. See Kuykendall, 466 F.3d at 1152. Lockheed has offered no
evidence that Ms. Timmons acted with subjective bad faith. An ADEA claim by a
disgruntled former employee who was 62 years old when terminated does not “stretch
the bounds of reason,” much less raise an inference of impermissible conduct. See
Mountain W. Mines, 470 F.3d at 954. Though ultimately meritless, Ms. Timmons’
claims do not evince “subjective bad faith.” Therefore, she is not liable for any fees
Lockheed incurred in this litigation.
C.

PROPER AMOUNT OF FEE AWARD
Having concluded that Lockheed is entitled to an award of attorneys’ fees from

Mr. Keiffer under § 1927, the Court now turns to deciding the appropriate amount of that
award. Section 1927 entitles Lockheed to recover only attorneys’ fees incurred
because Mr. Keiffer unreasonably continued to press Ms. Timmons’ claims after he
should have ceased. Because filing a complaint cannot constitute continued efforts,
Lockheed cannot recover fees incurred responding to the complaint. See Steinert,
440 F.3d at 1225. In this case, it would have been reasonable and responsible for
Mr. Keiffer to dismiss Ms. Timmons’ claims immediately after Lockheed filed its
summary judgment motion on December 7, 2012. At that point, Mr. Keiffer was
confronted with the legal and factual deficiencies afflicting both of Ms. Timmons’ claims.
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Instead of dismissing both claims, however, Mr. Keiffer responded to Lockheed’s motion
with factually and legally baseless arguments. Consequently, the Court awards the fees
Lockheed incurred after that date. See Rhein v. McCoy, 2011 WL 4345872, at *5-6
(D. Colo. 2011) (unpublished) (plaintiff began multiplying proceedings unreasonably
and vexatiously after defendant filed summary judgment motion).
In addition, the § 1927 fee award cannot exceed the amount Lockheed
“reasonably incurred” because of Mr. Keiffer’s sanctionable conduct. If the amount
actually incurred by Lockheed was reasonable, the Court may award that amount.
See Hamilton, 519 F.3d at 1207. Mr. Keiffer challenges only the number of hours
Lockheed’s counsel spent on the summary judgment motion and reply. (Doc. # 38
at 6.) After Lockheed filed its summary judgment motion on December 7, 2012, its
counsel billed a total of $5,265.57 for time spent drafting (1) a reply, (2) a motion to
strike Ms. Timmons’ response, and (3) a reply to Ms. Timmons’ amended response.
(Doc. # 37-1 at 17-19.) That amount included 15.3 hours billed at a rate of $256.50 per
hour by Lockheed’s lawyer, Mr. Smith, and 9.5 hours billed at a rate of $141.17 per hour
by paralegal Ms. Kernan. (Id. at 3.) These fees related to Mr. Keiffer’s continued efforts
to advance Ms. Timmons’ baseless claims after he should have dismissed them.
Having reviewed the affidavit submitted by Lockheed’s counsel which describes the
work completed, the Court concludes that the hourly rate and amount of time spent
by Mr. Smith and Ms. Kernan were reasonable.
In addition, Lockheed seeks an award of $3,676.95 in fees incurred related to its
first motion for fees and subsequent reply. (Doc. # 42 at 4.) Had Lockheed submitted
documentation detailing the specific tasks performed to incur those fees, such an award
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may have been appropriate. See Robinson v. Dean Foods Co., 2009 WL 1513099, at
*3 (D. Colo. 2009) (unpublished) (fees incurred in preparing motion for sanctions were
“necessitated by the unreasonable and vexatious multiplication of proceedings”).
However, Lockheed failed to submit that documentation, leaving the Court unable to
review the reasonableness of the billing rate and time spent that yielded $3,676.95 in
fees. Therefore, the Court will deny Lockheed’s request for an award of the attorneys’
fees incurred to recover the fees from the underlying litigation. See United States
ex rel. Superior Steel Connectors Corp. v. RK Specialties Inc., 2012 WL 3264296, at *4
(D. Colo. 2012) (unpublished) (denying fee request where appropriate documentation
was missing); see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“[T]he fee
applicant bears the burden of establishing entitlement to an award and documenting
the appropriate hours expended and hourly rates.” (emphasis added)).
Finally, the Court denies Lockheed’s request for the $812.70 that it incurred
responding to the Court’s October 3, 2013 Minute Order. (See Doc. # 42 at 4.) Upon
considering Lockheed’s first motion for attorneys’ fees, the Court recognized that § 1927
was the most appropriate basis for awarding fees. Upon affording Mr. Keiffer notice
and an opportunity to respond, the Court could have awarded fees under § 1927 sua
sponte. See Dominion Video Satellite, Inc. v. Echostar Satellite, L.L.C., 430 F.3d 1269,
1280 (10th Cir. 2005). Instead, the Court directed the parties to develop the arguments
more fully through simultaneous briefing, and doing so satisfied Mr. Keiffer’s due
process rights. See id. at 1279 (Due process is satisfied by giving “notice that . . .
sanctions are being considered by the court and a subsequent opportunity to respond.”)
The § 1927 arguments could have been developed and due process satisfied if
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Lockheed had raised the issue in its initial motion for fees. The cost Lockheed incurred
for failing to do so cannot be imposed on Mr. Keiffer.
III. CONCLUSION
For the reasons stated above, the Court DENIES Lockheed’s request for
attorneys’ fees under the Court’s inherent power (Doc. # 37) and GRANTS in part
Lockheed’s request for attorneys’ fees under 28 U.S.C. § 1927. (Doc. # 42)
Specifically, it is ORDERED that the attorney for Ms. Timmons, Jeffrey C. Keiffer, shall
pay the sum of $5,265.57 to Lockheed to reimburse it for attorneys’ fees incurred as a
result of work performed by Mr. Smith and Ms. Kernan beginning December 18, 2012,
and continuing through January 29, 2013. This sanction is IMPOSED against the
attorney for Ms. Timmons, Jeffrey C. Keiffer, who SHALL BE solely responsible for
payment of the required attorneys’ fees. Mr. Keiffer shall have until close of business
on February 21, 2014, to make arrangements satisfactory to Lockheed's counsel for
payment of this sum. Non-compliance may lead to further sanctions to be imposed
by this Court. See, e.g., D.C.COLO.LAttyR 6, available at http://www.cod.uscourts.gov/
Portals/0/Documents/LocalRules/2013-Working-Draft_FINAL_12-01-2013.pdf. It is
FURTHER ORDERED that all other requests by Lockheed for fees are DENIED.
DATED: January

22 , 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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