Handy v. Cook et al

Filing 64

ORDER DENYING 51 Motion for Attorney Fees; DENYING 56 Amended Motion for Attorney Fees; DENYING 62 Amended Motion for Attorney Fees. Ordered by Judge Marc Thomas Treadwell on 9/27/2011. (tlh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MARK HANDY,

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Plaintiff,
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v.
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TINA COOK, et al.,
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Defendants.
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___________________________________ )

CIVIL ACTION NO. 5:10-CV-271 (MTT)

ORDER
This matter is before the Court on Defendant Tina Cook and Defendant Cooper
Cook’s Motions for Attorney’s Fees.1 (Docs. 51, 56, 62). Pursuant to Fed. R. Civ. P.
54(d)(2)(B), a motion for attorney’s fees must be made no later than 14 days after the
entry of judgment, specify the basis for the award, and state the amount sought. Here,
the Motion was timely filed, and the Cooks seek attorney’s fees pursuant to 42 U.S.C.
§ 1988 and O.C.G.A. § 9-15-14(b) in the amount of $11,145.05.
Section 1988(b) states that district courts have the discretion to determine
whether to award reasonable attorney’s fees to the prevailing party other than the
United States. The Supreme Court has recently held that because of the different
equitable considerations for prevailing defendants, Ҥ 1988 authorizes a district court to
award attorney's fees to a defendant upon a finding that the plaintiff's action was
frivolous, unreasonable, or without foundation.” Fox v. Vice, __ U.S. __, 131 S. Ct.
2205, 2213 (2011).

1

The Plaintiff filed a response to the Motions five days after they were submitted in the CM/ECF
system. (Doc. 59). However, the Cooks have not objected to this delay, and the Court finds
that the Cooks are not prejudiced by this delay.

“Cases where findings of ‘frivolity’ have been sustained typically have been
decided in the defendant's favor on a motion for summary judgment or a Fed. R. Civ. P.
41(b) motion for involuntary dismissal. In these cases, the plaintiffs did not introduce
any evidence to support their claims.” Sullivan v. School Bd. of Pinellas County, 773
F.2d 1182, 1189 (11th Cir. 1985).
Factors considered important in determining whether a claim is frivolous
also include: (1) whether the plaintiff established a prima facie case; (2)
whether the defendant offered to settle; and (3) whether the trial court
dismissed the case prior to trial or held a full-blown trial on the merits.
While these general guidelines can be discerned from the case law, they
are general guidelines only, not hard and fast rules. Determinations
regarding frivolity are to be made on a case-by-case basis.
Id. (internal citations omitted).
Here, the claims against Cooper were frivolous. As stated in the Order
dismissing this action, “the Court notes that the Plaintiff does not have any evidence
linking Cooper to the December 2006 events.” (Doc. 49, at 10).
However, the claims against Tina were not frivolous. With regard to the Plaintiff’s
§ 1983 claims against Tina, the Plaintiff failed to establish probable cause and conduct
fairly attributable to the State, and this action was dismissed prior to trial. Nevertheless,
the Plaintiff did present evidence that he was charged with aggravated assault, even
though his warrant was for simple assault, and that all his charges were eventually
dropped. In the Court’s discretion, the Court cannot find that the Plaintiff’s § 1983
claims against Tina Cook were frivolous.
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In Fox, the Supreme Court adopted a “but-for” standard when a plaintiff asserts
frivolous and non-frivolous claims. The Court reasoned that “if the defendant would
have incurred those fees anyway, to defend against non-frivolous claims, then a court
has no basis for transferring the expense to the plaintiff.” Fox, __ U.S. at __, 131 S. Ct.
at 2215 (emphasis in original). The Court then provided an example of a deposition on
matters relevant to both a frivolous and non-frivolous claim to illustrate when awarding
attorney’s fees pursuant to § 1988 would be inappropriate. Id. The Court also provided
three examples of when awarding attorney’s fees would be appropriate: 1) when only
the frivolous allegation can legally result in damages; 2) when the frivolous claim
enables removal of the case to federal court; and 3) when the frivolous claim involves a
specialized area of law that required the defendant to hire more expensive counsel. Id.
at 2216.
Here, the claims against Tina and Cooper arose out of the same transaction--the
Plaintiff’s arrest on December 12, 2006. “It therefore seems likely that [the Cooks’
attorney] would at least have conducted similar fact-gathering activities--taken many of
the same depositions, produced and reviewed many of the same documents, and so
forth.” Id. at 2217. Moreover, as stated in the Order, the Plaintiff’s claims against the
Cooks essentially are claims against Tina. None of the examples of when attorney’s
fees should be awarded are applicable to this action. Thus, in its discretion, the Court
finds that the Cooks are not entitled to attorney’s fees pursuant to § 1988.
The Cooks also seek attorney’s fees pursuant to O.C.G.A. § 9-15-14(b) for the
Plaintiff’s state law false arrest, malicious prosecution, and bad faith claims, but it is
unclear whether these fees may be recovered in federal court. This Court has held that
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“a claim brought pursuant to O.C.G.A. § 9-15-14[(b)] can only be asserted in Georgia
state or superior courts.” Wells v. Cal-Maine Foods, Inc., 2005 WL 1127129, at *8
(M.D. Ga. May 12, 2005) (citations and quotations omitted); see also Haynes v.
Cyberonics, Inc., 2011 WL 3903238, at *9 (N.D. Ga. Sept. 6, 2011); Riverkeeper v.
Youmans, 2008 WL 4411098, at *7 (S.D. Ga. Sept. 29, 2008). However, the Eleventh
Circuit has held that a district court did not abuse it’s discretion by awarding attorney’s
fees pursuant to O.C.G.A. § 9-15-14(b). Blanchard v. DeLoache-Powers, 286 F.3d
1281, 1290 (11th Cir. 2002).
Assuming a claim for attorney’s fees pursuant to § 9-15-14(b) can be asserted in
federal court, “[a] prevailing party is not perforce entitled to an award of attorney fees
under this statutory subsection and a trial court need not make findings of fact in
denying an award. An award under O.C.G.A. § 9-15-14(b) is entirely within the
discretion of the trial court after considering all the facts and law.” Campbell v. Landings
Ass’n, Inc., 2011 WL 3689252 (Ga. App. Aug. 24, 2011) (citation and punctuation
omitted); accord Evers v. Evers, 277 Ga. 132, 133, 587 S.E.2d 22, 23 (2003) (“In order
to award attorney fees, a trial court must make findings of fact and conclusions of law
which are sufficient to support the award. When the trial court declines to award
attorney fees, however, findings of fact and conclusions of law are unnecessary.”)
(citations omitted).
Here, the Court, in the exercise of its discretion, declines to award attorney’s fees
pursuant to § 9-15-14(b).
Accordingly, the Motions are DENIED.

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SO ORDERED, this the 27th day of September, 2011.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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