Judeh v. Louisiana State University System et al

Filing 67

ORDER AND REASONS granting in part and denying in part 62 Motion for Attorney Fees. Defendants have 14 days from the date of this order to request anew amount reflecting only recoverable fees. Signed by Chief Judge Sarah S. Vance on 12/30/2013. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HILMI JUDEH

CIVIL ACTION

VERSUS

NO: 12-1758

LOUISIANA STATE UNIVERSITY
SYSTEM, et al.

SECTION: R(4)

ORDER AND REASONS
The Court has dismissed plaintiff's complaint with
prejudice.

Defendants now request $54,250.00 in attorney's fees

pursuant to 42 U.S.C. § 1988 and Rule 54(d).

The Court GRANTS

defendants' motion in part and DENIES it in part, and it defers
its ruling on the reasonableness of the fees until defendants
file a new request reflecting only the recoverable amounts.

I.

BACKGROUND
Plaintiff was expelled from the Louisiana State University

School of Public Health ("SPH") Master's in Public Health Program
for making threats on Facebook to destroy research that was the
property of the Louisiana Office of Public Health ("OPH").1

He

brought this action under 42 U.S.C. § 1983 against Elizabeth
Fontham, Stephanie Tortu, Donna Williams, Ariane Rung, and Joseph
Moerschbaecher in their official and individual capacities, as
well as against the Louisiana State University System ("LSU
1

See R. Doc. 60 for an explanation of the events leading up
to plaintiff's expulsion and the procedures by which he was
expelled.

System") and the LSU Health Sciences Center ("HSC").

The first

count alleged that each of the defendants violated his right to
free speech guaranteed by the First and Fourteenth Amendments.
The second count alleged that each of the defendants violated his
right to due process under the Fifth and Fourteenth Amendments.
The third count was a breach of contract claim brought against
the LSU System and the HSC.

Plaintiff alleged that "the policies

and procedures delineated and disseminated in the student
handbooks, codes of conduct, and the document entitled 'CM-56' by
defendants and through the School Public Health [sic] regarding
disciplinary [sic] created a binding contract under the Laws of
the State of Louisiana between Defendants and Petitioner."

He

claimed that the LSU System and the HSC breached this contract by
expelling him at an informal meeting.
Plaintiff filed a motion to recover the costs of service of
process on Tortu, Williams, and Moerschbaecher, as well as
reasonable attorney's fees, based on their failure to waive
service of process.

After oral argument, the magistrate judge

denied the motion, noting that Rule 4(d)'s waiver provisions were
inapplicable to the defendants in their official capacities and
that plaintiff had failed to comply with Rule 4(e) in serving the
defendants in their individual capacities.2
filed motions to dismiss.

2

Defendants then

Plaintiff immediately acquiesced in

R. Doc. 42.
2

the dismissal of his claims against the individual defendants in
their official capacities, indicating that he was seeking only
monetary damages rather than prospective or injunctive relief.3
He also acknowledged that neither the LSU System nor the HSC was
a juridical entity capable of being sued and that in any event,
the LSU Board of Supervisors, which was the proper juridical
entity, was immune from suit.4
The Court dismissed plaintiff's First Amendment claim for
failure to identify the protected speech in which he purportedly
engaged.5

It also dismissed plaintiff's due process claim

against Moerschbaecher, Fontham, and Rung, because plaintiff did
not claim that they were involved in the allegedly deficient
expulsion hearing.

The court declined to dismiss the claim

against Tortu and Williams, however, observing that there was a
question as to the sufficiency of the hearing they held with
plaintiff.6
Tortu and Williams moved for summary judgment on the due
process claim, which the Court granted on October 10, 2013.7

3

The

R. Doc. 30 at 1; R. Doc. 23 at 1; R. Doc. 22 at 1-2.

4

R. Doc. 22 at 1. Because the LSU System and the HSC
were the only defendants named in plaintiff's breach of contract
claim, that claim was dismissed without discussion.
5

R. Doc. 48.

6

Id.

7

R. Doc. 60.
3

Court held that plaintiff had been given sufficient opportunity
to respond considering he readily admitted making the threats,
which the administrators considered to be grounds for expulsion
per se, regardless of plaintiff's reasons, and because Tortu,
Williams, and Fontham were fully aware of plaintiff's explanation
for his behavior when Fontham responded to plaintiff's email
about the meeting, concurring in the dismissal and encouraging
plaintiff to appeal to Moerschbaecher.
Defendants now seek to recover $54,250.00 in attorney's fees
incurred by the Louisiana Attorney General in defending against
the suit, arguing that all of plaintiff's claims were frivolous.
Plaintiff argues that the claim for attorney's fees is untimely
except as to Tortu and Williams.

He also argues that defendants

cannot be awarded fees under § 1988 for the defense of his state
law breach of contract claim.

He contends that his First

Amendment and due process claims were not frivolous, and he
argues that the costs and fees claimed are excessive.

II.

STANDARD
Under 42 U.S.C. § 1988, a court "in its discretion, may

allow the prevailing party . . . a reasonable attorney's fee as
part of the costs" for proceedings in vindication of civil
rights.

Dean v. Riser, 240 F.3d 505, 507 (5th Cir. 2001)

(quoting 42 U.S.C. § 1988).

Though attorney's fees are

4

"presumptively unavailable" to a prevailing defendant in a civil
rights suit, Dean, 240 F.3d at 508, the court may grant such an
award upon a showing by the defendant "that the plaintiff's
action was frivolous, unreasonable, or without foundation."
Dean, 240 F.3d at 508 (quoting Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 421 (1978).

Courts may examine factors such

as: (1) whether the plaintiff established a prima facie case; (2)
whether the defendant offered to settle; and (3) whether the
court dismissed the case or held a full trial.

Doe v. Silsbee

Indep. Sch. Dist., 440 F. App'x 421, 425 (5th Cir. 2011) (per
curiam) (unpublished) (citing Myers v. City of W. Monroe, 211
F.3d 289, 292 (5th Cir. 2000)).

"These factors are, however,

guideposts, not hard and fast rules.

Determinations regarding

frivolity are to be made on a case-by-case basis."

Id. (quoting

E.E.O.C. v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir. 1997)
(internal quotation marks and citations omitted)).
A defendant may be entitled to fees even if not all of the
plaintiff's claims were frivolous, because "the presence of
reasonable allegations in a suit does not immunize the plaintiff
against paying for the fees that his frivolous claims imposed."
Doe, 440 F. App'x at 426 (quoting Fox v. Vice, 131 S. Ct. 2205,
2214 (2011)).

The defendant, however, may not recover fees

arising from the non-frivolous charges.

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Id.

III. DISCUSSION
Plaintiff first argues that the claims of all of the
defendants except Tortu and Williams are untimely.

Under Rule

54, a motion for attorney's fees must "be filed no later than 14
days after the entry of judgment," absent a statute or court
order providing otherwise.

Fed. R. Civ. P. 54(d)(2)(B).

He

argues that because these defendants were dismissed on April 18,
2013 and filed their motion for fees on October 31, 2013, their
claim is barred by Rule 54.

This argument is without merit.

Although the Court dismissed certain claims and defendants on
April 18, it did not enter judgment dismissing the complaint with
prejudice pursuant to Rule 58 until October 17, 2013.

The

defendants filed this motion 14 days later on October 31 and are
therefore in compliance with Rule 54.
A.

Claims Against the Individual Defendants in their
Official Capacities

Plaintiff sued Tortu, Williams, Fontham, Rung, and
Moerschbaecher in both their individual and official capacities,
even though a plaintiff may not sue a state employee in his or
her official capacity for damages.
U.S. 58, 71 (1989).

See Will v. Michigan, 491

A plaintiff may, however, sue a state

official in his or her official capacity for injunctive relief,
id. at 71 & n. 10, but it does not appear that plaintiff ever
sought an injunction.

Although his complaint concluded with a

sweeping request for all appropriate forms of relief, including
6

declaratory and injunctive relief,8 plaintiff did not specify
what the defendants should be enjoined from doing.

Moreover,

when defendants' motions to dismiss pointed to the bar on
official-capacity suits for damages, plaintiff immediately
acquiesced in the dismissal of the official-capacity claims,
admitting that he was "not seeking specific prospective or
injunctive relief in the suit."9
The Court therefore finds that plaintiff's claims against
the individual defendants in their official capacities were
without foundation and that defendants are entitled to recover
any expenses incurred in defending against them, however limited
they may be.10
B.

Claims Against the LSU System and the HSC

Plaintiff concedes that neither the LSU System nor the HSC
was an entity capable of being sued, and he acknowledges that the
breach of contract claim–which, unlike the other claims, was

8

See R. Doc. 1 ("Petitioner Hilmi Judeh prays that the
Court grant him declaratory and injunctive relief; award
compensatory and punitive damages in an amount determined by an
impartial jury; attorney's fees pursuant to 48 U.S.C. § 1988; and
such other and further relief as this Court may deem appropriate
under the circumstances.")
9

R. Doc. 30 at 1; R. Doc. 23 at 1; R. Doc. 22 at 1-2.

10

The Court observes that it took only four boilerplate
paragraphs discussing the bar on official-capacity suits to
convince plaintiff to consent to dismissal of his officialcapacity claims. See R. Doc. 20-2 at 1-3; R. Doc. 13-2 at 4-5;
R. Doc. 25-2 at 2-4.
7

brought solely against the institutional defendants–"was likely
not viable in federal court."

He argues that defendants are not

entitled to attorney's fees on the contract claim because he
acquiesced in LSU and HSC's dismissal "early in the litigation in
response to Defendants' Motion to Dismiss rather than pursue
unnecessary litigation."

That plaintiff consented to the

dismissal of a frivolous claim does not render that claim any
less frivolous.

Even if plaintiff had named the proper juridical

entity, the Board of Supervisors of the Louisiana State
University System, it is well established that this entity is
immune from suit in federal court.

Although plaintiff named the

LSU System and the HSC as defendants in each claim, he leveled
his breach of contract claim solely against them.

Yet plaintiff

never identified the terms of the contract that allegedly
existed.
Plaintiff argues that defendants cannot be awarded fees
under § 1988 for the defense of a state law breach of contract
claim.

But in Church of Scientology of California v. Cazares,

638 F.2d 1272, 1290-91 (5th Cir. 1981), the Fifth Circuit
permitted a prevailing defendant to recover attorney's fees for a
state law claim that was joined to plaintiff's civil rights claim
when the two claims arose out of the same nucleus of facts.
Similarly, the Seventh Circuit has held that a prevailing
defendant is entitled to attorney fees under § 1988 for work done

8

on pendent state claims as well as federal claims when all of the
claims arise out of same course of conduct.

See Munson v.

Milwaukee Bd. of Sch. Directors, 969 F.2d 266, 271-72 (7th Cir.
1992).

Accord Todd v. Lake Cnty. Sheriff's Dep't,

2:08-CV-314-JTM-PRC, 2013 WL 5570189 (N.D. Ind. Oct. 9, 2013);
Ingram v. Strother, CIV.A. 5:08-CV-32HL, 2009 WL 2143798 (M.D.
Ga. July 14, 2009).

In any event, because plaintiff brought two

other claims against the LSU System and the HSC, they would have
raised the defense that they are not suable entities regardless
of the existence of the contract claim.

The status of the named

parties as juridical nonentities and the immunity of the LSU
Board of Supervisors from suit render all of plaintiff's claims
against the two entities frivolous, and defendants are entitled
to recover fees for their defense against these claims.
C.

The First Amendment Claim

The Court dismissed plaintiff's First Amendment claim for
failure to identify the protected speech in which he purportedly
engaged, noting that the complaint indicated only that
"Defendants expelled Petitioner in part due to statements he made
through internet media which were protected under the First
Amendment of the United States Constitution."

Although he

indicated that he was dismissed "because he allegedly made
comments indicating that he planned on destroying data at a
former internship," and because he "allegedly threatened to
9

embarrass a staff member at the Louisiana Office of Public
Health," he did not admit to making these threats and provided
the Court with no details as to the content of his speech.11
Apparently, plaintiff's intention was to sue defendants for
violating his right to free speech without admitting to the Court
that the allegedly protected speech consisted of threats to
destroy government property.

The Court concludes that the claim

was frivolous and that defendants are entitled to recover fees
for their defense of that claim.

See Doe, 440 F. App'x at 426

("Because [plaintiff] failed to allege facts supporting an
essential element of her . . . claim, the district court did not
clearly err in finding that her equal protection claim was
frivolous.").
D.

The Due Process Claim

The Court dismissed plaintiff's due process claims against
Moerschbaecher, Rung, and Fontham because plaintiff never claimed
that they participated in the allegedly unconstitutional
expulsion meeting.12

It is immaterial whether the claim was

frivolous as to these defendants, because defendants' attorney
did not tailor his arguments to the defendants' personal
circumstances or levels of involvement and did not incur

11

R. Doc. 1.

12

R. Doc. 48 at 16-18. The Court did not address the due
process claims against the LSU System and the HSC, because it had
already concluded that they were not suable entities.
10

additional expenses as a result.

Instead, his argument on behalf

of each defendant, including Tortu and Williams, was identical
and dealt only with the sufficiency of the process afforded
plaintiff.

Because defendants may recover only the fees they

would not have incurred but for the existence of the frivolous
claims, see Fox, 131 S. Ct. at 2215, defendants may recover only
if the claim was frivolous against Tortu and Williams as well.
The Court concludes that it was not.

The claim survived

defendants' motion to dismiss, and although plaintiff did not
disclose the details of his appeal hearing with Dr.
Moerschbaecher in the complaint, this lack of candor was not the
basis on which the Court granted summary judgment.

Although the

Court found that plaintiff received all the process to which he
was entitled, the record does not support the conclusion that
plaintiff's claim was frivolous.
E.

Plaintiff's Motion to Tax Costs of Service

Because plaintiff's due process claim against Tortu and
Williams was not frivolous, they are responsible for all costs
associated with their defense against that claim, including their
defense of plaintiff's motion to recover the costs of service of
process.

Although the motion was baseless, the Court finds no

authority for permitting a defendant to recover costs associated
with a frivolous motion under § 1988 even though the underlying
claim was not frivolous.

Defendants could have sought relief

11

under Rule 11 if they felt that the motion was frivolous.

Absent

that, Tortu and Williams remain responsible for the costs of
opposing that motion.
F.

Costs

Defendants also seek to recover the costs associated with
depositions taken in this matter.

Because plaintiff's due

process claim against Tortu and Williams was not frivolous, and
because the depositions were intended to assist in the defense
against that claim as well as the others, defendants may not
recover these costs.

See Fox, 131 S. Ct. at 2215 ("Section 1988

permits the defendant to receive only the portion of his fees
that he would not have paid but for the frivolous claim.").
G.

Reasonableness of the Requested Amount

The Court defers its ruling on the reasonableness of the fee
amount until after defendants submit a new request reflecting
only recoverable expenses.

The Court notes, however, that the

hourly rate of $140 is well within the range traditionally
charged by attorneys in civil rights suits, and plaintiff has not
articulated any reason that the Court should depart from the
lodestar calculation based on the factors articulated in Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

12

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS the defendants'

motion in part and DENIES it in part.

Defendants are entitled to

recover reasonable fees for the defense of (1) the claims against
the individual defendants in their official capacities, (2) the
claims against the LSU System and the HSC, (3) plaintiff's First
Amendment claim, and (4) plaintiff's due process claims against
Rung, Moerschbaecher, and Fontham.

Defendants may not recover

fees for the defense of plaintiff's due process claim against
Tortu and Williams, including their defense against plaintiff's
unsuccessful motion to recover the cost of service of process.
Defendants have 14 days from the date of this order to request a
new amount reflecting only recoverable fees.

New Orleans, Louisiana, this 30th day of December, 2013.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

13