Ford et al v. 1280 West Condominium Association, Inc. et al
Filing
121
ORDER granting Defendant's 84 Motion for Attorney Fees, and the Court awards fees of $1,890.00 to Defendant 1280 West Condominium Association and against Plaintiffs. Plaintiff's 86 Motion for Reconsideration is DENIED. Defendant 39;s 92 Motion for Sanctions is GRANTED. Plaintiff's 94 Motion to Strike is DENIED. Plaintiff's 114 Motion for Extension of Time to Complete Discovery is GRANTED. Plaintiffs' claims against Defendant 1280 West Condominium Asso ciation are DISMISSED. The remaining parties are DIRECTED to confer in an effort to agree on a proposed scheduling order. If the parties cannot agree, the parties are DIRECTED to so inform the Court, and the Court will set a scheduling conference. Signed by Judge Richard W. Story on 5/5/2015. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KIMBERLY FORD and
MILDRED ROBINSON
Plaintiffs
CIVIL ACTION NO.
v.
1: 14-CV-00527-RWS
1280 WEST CONDOMINIUM
ASSOCIATION, INC., et al.,
Defendants.
ORDER
This case comes before the Court on Defendant's Motion for Attorney's
Fees [84], Plaintiff's Motion for Reconsideration [86], Defendant's Motion for
Sanctions [92], Plaintiff's Motion to Strike [94], and Plaintiff's Motion for
Extension of Time to Complete Discovery [114]. After reviewing the record,
the Court enters the following Order.
Background
This case arises out of Defendants' alleged unlawful housing
discrimination against Plaintiffs Kimberly Ford and Mildred Robinson. The
complete background of the case is laid out in the Court's September 2, 2014
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Order. (See Sept. 2, 2014 Order ("Sept. 2 Order"), Dkt. [83] at 2-8.) In that
Order, the Court dismissed Plaintiffs claims for breach of contract based on
the deactivation of the building access cards; intentional interference with
potential economic advantage and business relations; and fraud. The Court
also denied Plaintiffs' Motion for Preliminary Injunction [78] and granted
Defendant 1280 West Condominium Association, Inc.'s ("Association")
Motion for Partial Summary Judgment on Its Counterclaim [38] for Plaintiffs'
violation of the leasing restrictions in the condominium association's
declaration. In that same Order, the Court also granted the Association's
Motion to Compel Discovery [81]. Plaintiffs move for reconsideration of the
Court's rulings.
Discussion
I.
Defendant Association's Motion for Attorney's Fees [84]
In the September 2, 2014 Order [83] granting the Association's Motion
to Compel [81], the Court found that the Association was entitled to an award
of attorney's fees against Plaintiffs for the bringing of the motion. The
Association was ordered to file a statement of fees within 7 days and Plaintiffs
were allowed to file objections within 7 days thereafter. (Sept. 2 Order, Dkt.
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[83] at 40.) On September 5, 2014, the Association filed a Statement of Fees
(the Statement was entered on the docket as a Motion for Attorney Fees [84]).
Rather than file objections, Plaintiffs filed a Motion for Reconsideration [86]
on September 12.1 Plaintiffs having offered no valid objections to the fees
requested by the Association, the Court finds that the fees are reasonable and
awards fees of $1,890.00 to the Association and against Plaintiffs.
II.
Motion for Reconsideration
[86]
Plaintiffs' Motion for Reconsideration [86] disputes a number of the
Court's rulings in its September 2, 2014 Order. Plaintiffs argue that the Court
erred by: (1) dismissing Defendants Martin Paine and Lisa Weibel for
insufficient service of process; (2) dismissing the breach of contract claim
based on the deactivation of the building access cards; (3) denying Plaintiffs'
Motion for Preliminary Injunction [78]; (4) granting the Association's Motion
to Compel [81]; and (5) granting summary judgment in favor of the Association
on Plaintiffs' breach of the condominium declaration.
A.
Legal Standard
Under the Local Rules of this Court, "[m]otions for reconsideration shall
'The Court addresses the merits of that Motion in Part II of this Order.
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not be filed as a matter of routine practice[,]" but rather, only when "absolutely
necessary." LR 7.
2(E), NDGa. Such absolute necessity arises where there is
"(1) newly discovered evidence; (2) an intervening development or change in
controlling law; or ( 3) a need to correct a clear error of law or fact." Bryan v.
Murphy, 246 F. Supp.2d 1256, 1258-59 (N.D.Ga.200 3). However, a motion
for reconsideration may not be used "to present the court with arguments
already heard and dismissed or to repackage familiar arguments to test whether
the court will change its mind." Id.at 1259. Furthermore, "[a] motion for
reconsideration is not an opportunity for the moving party ...to instruct the
court on how the court 'could have done it better' the first time." Pres.
Endangered Areas of Cobb's History. Inc.v.U.S.Army Corps of Eng'r� 916
F. Supp.1557, 1560 (N.D.Ga.1995), aff d, 87 F.3d 1242 (11th Cir.1996).
B.
Analysis
All of Plaintiffs' arguments are either arguments that were made in
earlier briefing or arguments that could have been made in briefing the original
motions. Plaintiffs do not identify newly discovered evidence or an
intervening development or change in controlling law. In addition, the Court
finds that as to each of the rulings Plaintiffs challenge, Plaintiffs fail to show a
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need to correct a clear error of law or fact.
First, the Court finds that no clear error in dismissing Defendants Paine
and Weibel for insufficient service of process. As the Court explained,
Plaintiffs failed to include any evidence of service in the record before the
Court ruled on the motions to dismiss, even after Plaintiffs indicated at the June
3, 2014 scheduling conference that they would take steps to perfect service.
Now, Plaintiffs attach two proofs of service for Defendants Paine and Weibel
to their Motion for Reconsideration. (See Dkt. [87] at 30, 32.) The process
server signed the documents on May 23, 2014, and thus the documents were in
Plaintiffs' possession before the scheduling conference and well before the
Court ruled on the motions to dismiss, and yet Plaintiffs failed to file them.
What is more, the proof of service for Defendant Weibel shows that Ms.
Weibel was not personally served as required under Rule 4(e)(2)(A). Instead,
Chelle Gerber accepted service, and there is no indication that Ms. Gerber is
authorized to accept service on Ms. Weibel's behalf. Accordingly, service was
not effective on Ms. Weibel. For these reasons, the Court properly dismissed
Defendants Paine and Weibel.
Plaintiffs next argue that the Court erred in dismissing their breach of
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contract claim based on deactivation of the access cards. Plaintiffs arguments,
however, are largely repetitive of those made on the original motion or are new
arguments that could have been made earlier. In any event, the Court finds no
clear error of law, and for the reasons stated in its September 2 Order, (Dkt.
[83] at 20-23) the Court finds that it properly dismissed the breach of contract
claim.
Plaintiffs also contend that the Court incorrectly denied their Motion for
Preliminary Injunction [78]. In that motion, Plaintiffs argued that Defendants
denied them full use of their property by deactivating their access cards and
requested injunctive relief. The Court denied the motion, finding that Plaintiffs
had failed to establish irreparable harm because they still had access to their
unit, although it was less convenient. (Sept. 2 Order, Dkt. [83] at 36-38.) The
Court further held that Plaintiffs failed to carry their heavy burden to
demonstrate a substantial likelihood of success on the merits of their claims.
(Id. at 38.) Plaintiffs assert that they are indeed suffering irreparable harm
because "irreparable harm may be presumed from the fact of discrimination and
violations of the Fair Housing statutes." (Pls.' Br., Dkt. [87] at 13.)
Plaintiffs cite Rogers v. Windmill Pointe Village Club Ass'n, Inc., 967
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F.2d 525, 528 (11th Cir. 1992), for the proposition that violations of fair
housing statutes cause irreparable harm. The court in Rogers indeed held that
when such discrimination is shown, "it is reasonable to presume that
irreparable injury flows from the discrimination." Id. (quoting Gresham v.
Windrush Partners. Ltd., 730 F.2d 1417, 1423-24 (11th Cir. 1984)). But the
court went on to note that the presumption "may be rebutted by evidence that
any injury that may occur is not irreparable." Id. The court provided reasons
"why housing discrimination results in irreparable injury." Id. (internal
quotation marks omitted). For instance, a person discriminated against could
be "in limbo" during litigation, the available housing where discrimination is
occurring could become occupied as the case is pending, monetary relief
cannot correct the injury completely, and "harm from housing discrimination
includes the loss of safe, sanitary, decent housing." Id. at 528-29.
The evidence the parties submitted indicates that Plaintiffs are not likely
to suffer these harms because they are not searching for their own housing but
instead were attempting to lease a condominium unit that they did not occupy.
Moreover, the evidence is that Plaintiffs still have access to their unit. To the
extent that Defendants have wrongfully refused to grant Plaintiffs a permit to
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lease their unit, such monetary harm is not irreparable. Finally, even if the
Court found that such harm was irreparable, the Court denied the preliminary
injunction for the additional reason that Plaintiffs had failed to show a
substantial likelihood of success on the merits of their claims. Again, Plaintiffs
state no valid basis for reconsideration.
As for the Court's order compelling discovery, Plaintiffs argue that they
were not required to respond to the Association's discovery requests. For the
reasons discussed in Part III in conjunction with the Association's Motion for
Sanctions [92], the Court rejects this argument.
Many of Plaintiffs' remaining arguments pertain to the Court's grant of
summary judgment in favor of the Association on its claim that Plaintiffs
breached the condominium declaration's restriction on leasing. Once again,
Plaintiffs' arguments do not offer valid reasons for reconsideration. Plaintiffs
dispute the Court's conclusion, arguing that it decided an issue that should
have been left for a jury. But as Defendants point out, construing the
condominium declaration is a question of law. O.C.G.A. § 13-2-1 ("The
construction of a contract is a question of law for the court."). Still, Plaintiffs
continue to dispute that they leased their unit to Mr. Paine, arguing that the
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Fulton County Magistrate Court had previously found that there was no lease.
But Plaintiffs fail to show that the Court clearly erred when it analyzed whether
Plaintiffs leased their unit as defined in the condominium declaration-the
relevant inquiry in deciding whether Plaintiffs violated the terms of the
declaration. (See Sept. 2 Order, Dkt. [83] at 32-38.)
For all these reasons, Plaintiffs' Motion for Reconsideration [86] is
DENIED.
III.
Defendant's Motion for Sanctions
[92]
In the Association's Motion for Sanctions [92], the Association seeks
sanctions against Plaintiffs based on Plaintiffs' failure to comply with the
Court's September 2 Order [83] ordering Plaintiffs to "provide complete and
verified responses to the First Interrogatories and the First Document Request"
of the Association and concluding that "Plaintiffs have waived any opportunity
to object to the discovery." (Sept. 2 Order, Dkt. [83] at 39-40.) The Association
asserts that Plaintiffs failed to provide complete responses to the discovery and,
in several instances, lodged objections to the discovery request.
The Association argues that a sanction of dismissal is proper under these
circumstances. Under 28 U.S.C. § 1927,
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Any attorney or other person admitted to conduct cases in any
court of the United States . . . who so multiplies the proceedings in
any case unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such conduct.
The Eleventh Circuit has established three essential requirements for an
award of sanctions: The attorney must engage in (1) "unreasonable and
vexatious" conduct, which (2) "multiplies the proceedings," and (3) "the dollar
amount of the sanction must bear a financial nexus to the excess proceedings."
Peterson v. B.M.I. Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997).
Furthermore, courts have inherent powers to impose sanctions on attorneys.
See In re Walker, 532 F.3d 1304, 1309 (11th Cir. 2008). A finding of bad faith
is required before imposing sanctions under either§ 1927 or under the Court's
inherent powers. See id.; Amlong & Amlong. P.A. v. Denny's. Inc., 500 F.3d
1230, 1239 (11th Cir. 2006) (holding that under§ 1927, "an attorney multiplies
proceedings 'unreasonably and vexatiously' within the meaning of the statute
only when the attorney's conduct is so egregious that it is 'tantamount to bad
faith' " (quoting Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991))). For
example, bad faith is shown when "an attorney knowingly or recklessly raises a
frivolous argument, or argues a meritorious claim for the purpose of harassing
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an opponent. A party also demonstrates bad faith by delaying or disrupting the
litigation or hampering enforcement of a court order." Id. (quoting Byrne v.
Nezhat, 261F.3d 1075, 1121 (11th Cir. 2001)) (internal quotation marks
omitted).
Even if a court finds bad faith, however, "dismissal is warranted only
upon 'a clear record of delay or willful contempt and a finding that lesser
sanctions would not suffice.'" Mingo v. Sugar Cane Growers Co-op. ofFla.,
864 F.2d 101, 102 (11th Cir. 1989).
In their Response [93],2 Plaintiffs assert that they have made complete
responses to all discovery requests. This assertion is based, in part, on
Plaintiffs' contention that the Court's decision that the case would proceed
based on Plaintiffs' Second Amended Complaint [21] excused Plaintiffs from
their obligations to respond to the discovery. In the "Definitions" section of
2
In addition to filing a Response [93], Plaintiffs filed a Motion to Strike
Defendants' Motion to Compel [94], arguing that Defendants' motion is "redundant,
immaterial, impertinent, or scandalous." (Dkt. [94-1] at 4.) That filing is identical to
Plaintiffs' Response [93] to the Motion to Compel. While the Court considers
Plaintiffs' arguments opposing the Motion to Compel, the Court DENIES the Motion
to Strike because Rule 12(f) only authorizes motions to strike material from a
pleading. FED. R. C1v. P. 12(f). It is improper to move to strike a motion simply
because a party opposes it.
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the discovery requests that were served on April 14, 2014, the Association
stated, "Complaint means Plaintiffs Complaint filed in this Action on or about
February 19, 2014." (Mot. to Compel, Ex. 2 [81-2] at 2; Ex. 3 [81-3] at 2; Ex.
4 [81-4] at 2.)
Plaintiffs filed a Second Amended Complaint [21] on April 7, 2014,
without seeking leave of Court. Defendants filed a Motion to Strike [37] the
Second Amended Complaint on April 22, 2014. After Plaintiffs had filed two
Amended Complaints, Defendants filed a Motion for a Rule 16 Conference
[31] so that the Court could determine which Complaint would be the effective
Complaint on which the case would proceed. The Court granted the Motion
[54] and held a Rule 16 Conference on June 3, 2014. At that conference [74],
the Court announced that the case would proceed on the Second Amended
Complaint [21].
Thereafter, the Association filed its Motion to Compel [81] on July 14,
2014. Plaintiffs filed no response to the Motion. On September 2, the Court
entered the Order ordering Plaintiffs to respond to the discovery. In the same
Order, the Court reconfirmed that the case was proceeding on the Second
Amended Complaint. (Sept. 2 Order, Dkt. [83] at 7.) Thus, when the Court
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ordered Plaintiffs to comply with discovery, the Court was fully aware that the
case was not proceeding on the original Complaint filed February 19, 2014, but
was proceeding on the Second Amended Complaint. However, the fact that the
case was proceeding in this manner had no impact on the discovery requests of
the Association. First, many of the requests make no reference to the
Complaint. Second, the fact that the original Complaint is used by the
Association to describe the information sought does not excuse Plaintiffs from
their obligation to respond to the request.
The position taken by Plaintiffs is unreasonable. The filing of an
amended complaint in no way excuses a party from its discovery obligations.
If Plaintiffs had reasonable objections, they should have been stated in a timely
fashion. However, Plaintiffs neither responded to the discovery nor the Motion
to Compel. The Court therefore finds that Plaintiffs' failure to respond to the
discovery and subsequent failure to comply with the Court's September 2, 2014
Order constitutes bad faith. Plaintiffs' failure to comply with their discovery
obligations has caused needless delay, and the Court further finds that
Plaintiffs' failure to comply was willful because, as they argue, they chose not
to comply with the Court's Order because they believed they were excused
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from their discovery obligations. What is more, Plaintiffs did not raise these
issues at the Rule
16 conference or in response to the Motion to Compel.
And,
even if Plaintiffs were correct that they did not have to respond to discovery
requests referencing the original Complaint, Plaintiffs also raised objections to
other discovery not related to the Complaint even after the Court found that
they had waived their opportunity to object.
Finally, the Court concludes that no lesser sanction than dismissal of
Plaintiffs' claims against the Association3 will suffice. An award of attorney's
fees would not be an adequate remedy because the Court has already ordered
Plaintiffs to comply with discovery and to pay attorney's fees, but these
measures have failed to ensure Plaintiffs' cooperation. The Court further finds
that attorney's fees would not adequately remedy the resulting delay in this
case. Consequently, a sanction of dismissal is appropriate based on Plaintiffs'
pattern of delay and willful disregard of the Court's Order. See. e.g., Goforth
v. Owens,
766 F.2d 1533, 1535 (11th Cir. 1985) (finding that any lesser
sanction than dismissal would not have served the interests of justice when
3The discovery, Motion to Compel [81], and Motion for Sanctions [92] were
only sought on behalf of the Association. Therefore, the Court only orders dismissal of
Plaintiffs' claims against the Association.
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"plaintiffs counsel engaged in a pattern of delay and deliberately refused to
comply with the directions of the court"); Vaughan v. Apfel, 209 F.R.D. 496,
499 (M.D. Fla. 2001) ("Lesser sanctions would not serve justice where
plaintiffs misconduct not only constituted a clear record of delay, but also a
willful disregard of an order."). For these reasons, Plaintiffs' claims against the
Association are DISMISSED.
IV.
Plaintiff's Motion for Extension of Time to Complete Discovery
[114]
Plaintiffs Motion for Extension of Time to Complete Discovery [114] is
GRANTED. The remaining parties are directed to confer in an effort to agree
on a proposed scheduling order. If the parties cannot agree, the parties are
directed to inform the Court, and the Court will set a scheduling conference.
Conclusion
For the foregoing reasons, Defendant's Motion for Attorney's Fees [84]
is GRANTED, and the Court awards fees of $1,890.00 to Defendant 1280
West Condominium Association and against Plaintiffs. Furthermore,
Plaintiffs Motion for Reconsideration [86] is DENIED, Defendant's Motion
for Sanctions [92] is GRANTED, Plaintiffs Motion to Strike [94] is DENIED,
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and Plaintiffs Motion for Extension of Time to Complete Discovery [114] is
GRANTED.
Plaintiffs' claims against Defendant 1280 West Condominium
Association are DISMISSED. The remaining parties are DIRECTED to
confer in an effort to agree on a proposed scheduling order. If the parties
cannot agree, the parties are DIRECTED to so inform the Court, and the Court
will set a scheduling conference
SO ORDERED, this
5'/11..
day of
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�2015.
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