Flournoy v. CML-GA WB, LLC et al
Filing
84
ORDER denying Defendants' 71 Motion for Attorney Fees; and, denying as moot Plaintiff's 75 Motion for Oral Argument. Signed by Judge J. Randal Hall on 8/26/2016. (jah)
IN THE UNITED
FOR THE
STATES DISTRICT COURT
SOUTHERN DISTRICT OP GEORGIA
AUGUSTA DIVISION
PATRICIA C.
FLOURNOY,
*
Plaintiff,
*
v.
*
CML-GA WB, LLC; RIALTO
CAPITAL ADVISORS, LLC; REX
PROPERTY AND LAND, LLC; and
PAUL GREGORY KING,
CV 114-161
*
*
*
*
*
Defendants,
ORDER
Currently before the Court is Defendants CML-GA WB,
and
Rialto
attorneys'
DENIES
Capital
fees.
Defendants'
Advisors,
(Doc.
71.)
("Defendants")
Upon
consideration,
motion
the
for
Court
motion.
I.
Plaintiff
LLC's
LLC's
initiated
Background
this
action
on
July
29,
2014
and
alleged that Defendants discriminated against her based on her
race
when
Defendants'
they
denied
building.
for summary judgment,
her
(Doc.
application
1.)
to
Eventually,
lease
space
in
Defendants moved
which the Court granted on December 10,
2015.
(Doc.
January
8,
moved
are
28
for
62.)
Plaintiff
2016.
(Doc.
attorneys'
entitled to
U.S.C.
§ 1927,
65.)
fees.
fees
under
and 42
filed
On
notice
January
(Doc.
Rule
14,
of
appeal
on
2016,
Defendants
Defendants
71.)
Federal
U.S.C.
her
claim they
of
Civil
§ 1988(b).
Procedure
68,
The Court addresses
each of these separately below.
II.
As
a
preliminary
Discussion
matter,
the
Court
notes
Plaintiff has appealed the Court's ruling on
for
summary
current
Mgmt.
judgment,
motion
Co.,
for
it
retains
attorneys'
677 F.2d 64,
64-65
that,
Defendants'
jurisdiction
fees.
See
(11th Cir.
although
to
motion
hear
Rothenberg
v.
the
Sec.
1982).
1. Defendants are not entitled to attorneys' fees under Federal
Rule of Civil Procedure 68 because judgment was not entered in
favor of Plaintiff.
Under Rule 68, a defendant may make an offer of judgment to
a plaintiff
plaintiff
on
specified terms.
rejects
the
offer
Fed.
and
R.
then
Civ.
P.
68.
ultimately
If
the
obtains
a
judgment that is "not more favorable than the unaccepted offer,
the
offeree
made."
Fed.
must
R.
pay
Civ.
plaintiff
obtains
offer
defendant
the
a
obtains a judgment.
the
costs
68(d).
incurred
This
rule
judgment
that
is
made;
does
not
it
after
less
applies
v.
when
offer
only
favorable
apply
Delta Air Lines, Inc.
the
a
August,
was
when
than
a
the
defendant
450 U.S.
346,
351-52
(1981)
text
of
Rule
the
("In
sum,
itself,
if
it
is
we
limit
clear
that
offers made by the defendant and only to
the
plaintiff.") ; La.
319,
to
334
(5th Cir.
defendant;
451 n.l
68
to
1995)
in
cases
prevails
Power
a
which
& Light
our
Co.
analysis
it
obtains
the
only to
judgments obtained by
v.
Kellstrom,
("[T]he Supreme Court
plaintiff
applies
to
a
50
F.3d
limited Rule
judgment
against
68
the
the rule is not applicable when a defendant actually
over
the
(3d Cir.
recover
plaintiff.");
1991)
costs
Landon
v.
("[The defendants]
in
this
case
Hunt,
938
F.2d
450,
could not rely on Rule
because
the
district
court
dismissed the claim against them with prejudice.").
In
of
this
case,
Defendants,
so
the Court
granted summary judgment in
favor
Defendants are not permitted to recover costs
or fees under Rule 68.
request for attorneys'
The Court,
therefore,
DENIES Defendants'
fees under Rule 68.
2. Defendants are not entitled to attorneys' fees under 28 U.S.C.
§ 1927 because they have not produced any evidence that
Plaintiff's attorneys acted unreasonably or vexatiously.
Defendants move for attorneys'
fees under 28 U.S.C.
§ 1927,
which provides:
Any attorney or other person admitted to conduct
cases in any court of the United States or any
Territory thereof 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
attorneys1
fees
reasonably incurred because of such conduct.
28 U.S.C.
§ 1927.
For an award under § 1927 to be proper,
attorney must engage in unreasonable and vexatious conduct;
conduct
must
multiply
the
proceedings;
and
the
amount
"an
this
of
the
sanction cannot exceed the costs occasioned by the objectionable
conduct."
Peer v.
(citation
omitted)
standard
is
met
egregious
that
Lewis,
(internal
"only
it
606 F.3d 1306,
is
quotation
when
the
tantamount
1314
marks
to
bad
recklessly
omitted)
a
frivolous
This
conduct
faith [,]"
is
"is
which
so
an
attorney knowingly
claim."
Id.
(citations
(internal quotation marks omitted).
Here,
§ 1927
pursues
2010)
omitted).
attorney's
objective standard that is satisfied when an
or
(11th Cir.
Defendants
because
claim
they
Plaintiff's
are
entitled
attorneys
pursuing this frivolous action.
acted
The Court,
to
fees
under
recklessly
however,
in
disagrees.
Although the Court determined that Plaintiff's claim failed as a
matter
of
law,
it
declines
was "so egregious that it
606
F.3d
omitted).
that
at
Accordingly,
1927.
the
her
attorney's
conduct
omitted)
(internal
Peer,
quotation
marks
there is simply no evidence before the Court
that
tactics
find that
[was] tantamount to bad faith."
(citation
Further,
indicates
dilatory
§
1314
to
or
Plaintiff's
multiplied
attorneys
any
ever
engaged
proceeding.
Court DENIES Defendants'
motion for
in
See
any
id.
fees under
3. Defendants are not entitled to attorneys' fees under 42 U.S.C.
§ 1988 because they did not timely file their motion.
Under
statute
Federal
or
attorneys'
a
Rule
court
fees]
of
order
applies
U.S.C.
to
at
applied
Rule
for
Home
*1
provides
54,
otherwise,
"[u]nless
[a
motion
Fed. R. Civ. P. 54(d)(2)(B).1
motions
§ 1988.
313902,
Procedure
a
for
must ... be filed no later than 14 days after
the entry of judgment."
54
Civil
(6th
v.
attorneys'
Hamilton,
Cir.
May
54 (d) (2) (B) 's
3,
fees
Ph.,
181
1999)
fourteen
brought
F.3d
time
under
101,
("Numerous
day
And Rule
1999
courts
limit
42
to
WL
have
§ 1988
motions for attorney's fees.").
Here,
and
judgment was
Defendants
(doc.
—
for
attorneys'
thirty-five
14,
2016
January
Nor have
under
Rule
6(b).
Romaguera
v.
Defendants
claim
because,
counsel
via
that
Defendants'
the
See
they
e-mail,
she
SDGa.
R.
complied
intended
to
based
entry
on
Civ.
893
excusable
neglect
Instead,
citing
6(b).
F.3d
with
Defendants'
the
purpose
counsel
request
(5th
Cir.
of
informed
fees.
In
Court
case
before
also untimely under the
1998),
Rule
54 (d)
Plaintiff's
that
"I thought you might want to
Supreme
Defendants motion was
See LR 54.2,
time
162
counsel stated:
U.S.
of
Fed.
Gegenheimer,
attached
1
extension
the
63),
Defendants do not argue that their motion was timely.
an
after
on
(doc.
judgment.
requested
days
fees
2015
of
they
71)
moved
entered on December 10,
e-mail,
review
dismissing
Court's
local
our
rule.
ability to pursue attorneys'
fees.
I'm sure you are aware that
Section 1988 equally applies to 1981 claims."
(Doc.
79-1 at 1.)
While this correspondence may show that Plaintiff was aware that
Defendants
planned
distinguishable
order
to
from
accompanying
than
the
a
fees
days
motion
granted.
Id.
at
district
court's
satisfied Rule
stated that
Id.
entry
the
at
of
attorneys'
894-95.
fees,
issue,
district
the
it
acknowledgment
"[h]ad
refrained
hearing.
the
from
the
Court
intention
Id.
giving
to
Subsequently,
more
judgment,
the
the
plaintiff
district
court
plaintiff's
request
at
the
896.
court]
Indeed,
not
impression
[the plaintiff]
not
entered
any
seek attorneys'
fees
the Fifth
addressed
that
a
a
the
hearing
would have been
Id.
order
or
recognizing
scheduled any
And "[t]he fact that the parties were well aware that
intended
indeterminate
date
the
had
that
895.
the
[district
has
[Defendants]
with
court's
plaintiffs
required to file the motion under Rule 54(d)(2)."
Defendants'
easily
would address
which
of
would be scheduled by the court,
Here,
is
54 and the plaintiff's motion merely served as
noted,
or
it
The Fifth Circuit determined that the
reminder to the district court.
Circuit
the
and noted that
after
for
fees,
There,
judgment
a separate hearing.
fourteen
filed
attorneys'
Romaguera.
requested attorneys'
request at
seek
in
applicable
to
the
file
future
procedural
a
does
rules."
fees
not
motion
excuse
Bender
at
some
noncompliance
v.
Freed,
436
F.3d
747,
750
omitted).
(7th
Cir.
Defendants,
motion for attorneys'
judgment.
2006)
therefore,
(internal
were
quotation
required
to
marks
file
their
fees within fourteen days from the date of
Because they failed to do so, the Court DENIES their
motion as untimely.
4. Defendants would not be entitled to attorneys' fees, even if
they had timely filed their motion, because Plaintiff's claim
was not "frivolous, unreasonable, or without foundation."
Under
this one,
§ 1988,
42
proper
foundation."
The
1188
case;
trial
(2)
.
the
.
as
part
An
award
of
1985)
the
Id.
Bd.
as
was
Pinellas
when
plaintiff
or without
Cty.,
773
court
offered
dismissed
1189.
But
a
to
a
frivolity
prima
settle;
the
is
not
and
(3)
to
frivolous
Rather, "a district court
In applying these criteria, it is important that a district
court
resist
the
understandable
temptation
to
engage
in
post
hoc reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or
without
foundation.
This
kind
of
facie
prior
case
claim
F.2d
omitted).
evaluating
established
the
finding that
(internal quotation marks
defendant
at
"upon a
of
attorneys'
unreasonable,
of
considers
the
trial
."
frivolous,
Sch.
Court
whether
.
v.
whether
the
fee
merely because it ultimately failed.2
2
§ 1981,
§ 1988(b).
lawsuit was
(11th Cir.
"(1)
whether
under
attorney's
U.S.C.
Sullivan
factors
include:
brought
for a prevailing defendant
the plaintiff's
1182,
action
reasonable
costs . . . ."
is
an
the Court "in its discretion, may allow the prevailing
party ... a
fees
in
hindsight
logic
could
must
focus
on
the
question
whether
the
case
is
so
lacking
in
arguable merit as to be
groundless or without foundation rather
than
whether
was
"[a]
claim
the
is
claim
not
ultimately
frivolous
when
it
successful."
is
receive careful attention and review."
F.
App'x
, 2016 WL
(citation omitted)
Here,
1426013,
at *1
meritorious
0'Boyle v.
(11th Cir.
Id.
And
enough
to
Thrasher,
Apr.
12,
2016)
determined
that
(internal quotation marks omitted).
although
the
Court
ultimately
Plaintiff failed to establish a prima facie case,
it declines to
award
claim
Defendants
attorneys'
wholly
lack
arguable
review
from
the
merit
Court.
fees.
and
Plaintiff's
demanded
Moreover,
as
careful
noted
made an offer of judgment to Plaintiff.3
motion on this
not
attention
and
above,
Defendants
Because Plaintiff's
claim was not frivolous enough to warrant fees,
Defendants'
did
the Court DENIES
issue.
discourage all but the most airtight claims, for seldom can
a
prospective plaintiff be sure of ultimate success.
No matter
how
honest
one's
belief
that
he
has
been
the
victim
of
discrimination,
no matter how meritorious
one's
claim may
appear at the outset,
the course of litigation is rarely
predictable.
Decisive facts may not emerge until discovery or
trial.
The law may change or
clarify in
the midst
of
litigation.
Even when the law or the facts appear questionable
or unfavorable at the outset, a party may have an entirely
reasonable ground for bringing suit.
Sullivan,
434 U.S.
773
412,
F.2d
421-22
at
1188-89
(quoting Christiansburg Garment
Co.
v.
EEOC,
(1978)).
3
While this offer was for only $1,500 (doc. 74-11), Plaintiff
correctly points out that, had she accepted it, she would have potentially
been
entitled
to
more
than
that
amount
because
the
offer
did
not
include
costs, and as a prevailing party, Plaintiff could have sought attorneys' fees
under § 1988 as part of her costs.
See Utility v. Automation 2000, Inc. v.
Choctawhatchee Elec.
Co-op.,
Inc.,
298 F.3d 1238,
1241 (11th Cir.
2002).
III.
For the reasons
motion for attorneys'
Conclusion
stated above,
fees
(doc.
the Court DENIES
71.)
Additionally,
Defendants'
Plaintiff's
motion for oral argument is DENIED AS MOOT.
ORDER ENTERED at Augusta, Georgia this OjU^ciay of August,
2016.
HO^ORABLE^D". RANDAL HALL
UNlTEIf STATES DISTRICT JUDGE
]RN
DISTRICT
OF GEORGIA
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