Greco v. Velvet Cactus, LLC et al
Filing
77
ORDER AND REASONS granting in part 58 Motion for Attorney Fees and awards defendants attorney's fees in the amount of $180.00.. Signed by Chief Judge Sarah S. Vance on 11/25/14. (jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH RAYMOND GRECO, III
CIVIL ACTION
VERSUS
NO: 13-3514
VELVET CACTUS, LLC AND SCOTT
DICKINSON
SECTION: R(5)
ORDER AND REASONS
Before the Court is defendants Velvet Cactus, LLC and Scott
Dickinson's motion for attorney's fees.
that
plaintiff
asserted
a
frivolous
Because the Court finds
Title
VII
claim
against
defendant Scott Dickinson, the Court GRANTS IN PART defendants'
motion and awards defendants attorney's fees in the amount of
$180.00.
I.
Background
Plaintiff Joseph Raymond Greco, III
filed this suit against
defendants Velvet Cactus, LLC and Scott Dickinson asserting claims
for sexual harassment and retaliation under Title VII of the Civil
Rights Act of 1964 as well as state law tort claims.1
On June 27,
2014, the Court granted summary judgment against plaintiff on his
Title VII claims and declined to exercise jurisdiction over the
1
R. Doc. 1.
pendent state law claims.2 More specifically, the Court dismissed:
1) plaintiff's Title VII claims against Dickinson because a Title
VII claim is not viable against a non-employer;3 2) plaintiff's
Title VII sexual harassment claim against Velvet Cactus because
"uncontroverted evidence demonstrates that Greco's behavior failed
to
send
a
consistent
signal
that
Dickinson's
conduct
was
unwelcome;"4 and 3) plaintiff's Title VII retaliation claim against
Velvet Cactus because "Greco [] failed to present any facts
indicating the existence of a nexus between his alleged rejection
of Dickinson's advances and [Velvet Cactus'] decision to terminate
him."5
Defendants now move the Court to award attorney's fees under
28 U.S.C. § 2000e-5(k).
Defendants argue that they "should be
awarded its reasonable attorneys' fees associated with having to
defend Plaintiff's baseless Title VII claims."6
In response,
plaintiff argues that defendants are not entitled to attorney's
fees and, even if they were, that "Defendants' requested fees are
unreasonable."7
2
R. Doc. 68.
3
Id. at 19.
4
Id. at 24.
5
Id. at 29.
6
R. Doc. 58-1 at 2.
7
R. Doc. 60 at 1.
2
II.
Discussion
A.
Legal Standard
It is the general rule in the United States that in the
absence of legislation providing otherwise, litigants are liable
for their own attorney's fees.
See Christianburg Garment Co. v.
Equal Employment Opportunity Commission, 434 U.S. 412, 415 (1978)
(citing Alyeska Pipeline Co. v. Wilderness Society, 412 U.S. 240
(1975)). Congress has, however, provided limited exceptions to the
general rule under selected statutes protecting particular federal
rights.
See id.
Some of these statutes make fee awards mandatory
for a prevailing plaintiff.
Other statutes make fee awards
permissive but limit the parties who can recover to prevailing
plaintiffs.
See id. at 415-416.
Many of these statutes, however,
provide the district court with a great deal of flexibility and
discretion in awarding attorney's fees to either a prevailing
plaintiff or a prevailing defendant.
Section 706(k) of the 1964
Civil Rights Act falls within this last category.
Section 706(k)
provides:
In any action or proceeding under this title the court,
in its discretion, may allow the prevailing party, other
than the Commission or the United States, a reasonable
attorney's fees as part of the costs, and the Commission
and the United States shall be liable for costs the same
as a private person.
42 U.S.C. § 2000e-5(k).
3
Under § 706(k), a prevailing plaintiff is to be awarded
attorney's
fees
in
all
but
exceptional
circumstances.
See
Christianburg, 434 U.S. at 417. However, the policy considerations
that support granting attorney's fees to a prevailing plaintiff are
not present when there is a prevailing defendant.
As such, a
district court may grant a prevailing defendant's attorney's fees
only when the court in its discretion finds that the plaintiff's
claims were "frivolous, unreasonable, or without foundation."
at 421.
Id.
"[T]o determine whether a suit is frivolous, a court must
ask whether the case is so lacking in arguable merit as to be
groundless or without foundation rather than whether the claim was
ultimately successful." Stover v. Hattiesburg Pub. Sch. Dist., 549
F.3d 985, 988 (5th Cir. 2008) (citing Jones v. Texas Tech Univ.,
656
F.2d
1137,
1145
(5th
Cir.
1981)).
When
making
this
determination, the court may consider factors such as "whether the
plaintiff established a prima facie case, whether the defendant
offered to settle, and whether the court held a full trial."
Myers
v. City of W. Monroe, 211 F.3d 289, 292 (5th Cir. 2000).
Although defendants may be entitled to attorney's fees in some
circumstances,
"private
enforcement
would
be
substantially
diminished if parties who had good faith claims under the civil
rights statutes faced the prospect of always having to pay their
opponent's fees should they lose."
873, 878 (5th Cir. 1986).
Vaughner v. Pulito, 804 F.2d
Thus, the frivolity standard "is
4
intended to ensure that plaintiffs with uncertain but arguably
meritorious claims are not altogether deterred from initiating
litigation by the threat of incurring onerous legal fees should
their claims fail." Myers, 211 F.3d at 292 n.1 (internal citations
omitted).
Accordingly, claims do not need to be "airtight" to
avoid being frivolous, and courts must be careful not to use the
benefit
of
perfect
hindsight
in
assessing
frivolity.
Christianburg, 434 U.S. at 421-22.
Finally,
when
determining
whether
a
particular
claim
is
frivolous, the court should consider each claim individually, as "a
defendant may deserve fees even if not all the plaintiff's claims
were frivolous."
Fox v. Vice, 131 S. Ct. 2205, 2214 (2011).
If a
suit involves both frivolous and non-frivolous claims, however, a
prevailing defendant may only recover fees that "would not have
accrued but for the frivolous claim."
B.
Id. at 2216.
Analysis
1.
Plaintiff's Title VII Claims Against Velvet Cactus
Defendants argue that they are entitled to attorney's fees for
the work performed in defending against plaintiff's Title VII
claims against Velvet Cactus.
order
granting
summary
Defendants point to the Court's
judgment
5
to
bolster
their
claim
that
plaintiff failed to establish a prima facie case of either sexual
harassment or retaliation against Velvet Cactus.8
As an initial matter, defendants' argument asks the Court to
engage in precisely the type of post hoc reasoning the Supreme
Court cautioned against in Christianburg.
Christianburg makes it
clear that a district court must not rely solely on the ultimate
outcome of litigation as the standard for whether attorney's fees
should be awarded.
434 U.S. at 421 (citing Carrion v. Yeshiva
University, 535 F.2d 722 (2d Cir. 1976)) (stating that awards of
attorney's fees should not be granted to a prevailing defendant
routinely or simply because he succeeds).
Indeed, "the dismissal
of a plaintiff's claim before they reach the jury is insufficient
by itself to support a finding of frivolity."
Doe v. Silebee
Independent Sch. Dist., 440 F. App'x 421, 425 (5th Cir. 2011).
The dispositive question is instead whether plaintiff's Title
VII claims against Velvet Cactus were "so lacking in arguable merit
as to be groundless or without foundation."
988.
Stover, 549 F.3d at
Although plaintiff was ultimately unsuccessful in defeating
summary judgment, there is little in the record that shows that his
Title VII claims against Velvet Cactus were groundless or without
foundation.
defendant
Indeed, there is ample evidence in the record that
Dickinson,
an
owner
and
manager
at
Velvet
Cactus,
routinely engaged in sexually inappropriate behavior while working
8
R. Doc. 75 at 1-2.
6
as a supervisor at Velvet Cactus.9
Defendants also readily admit
that Dickinson was suspended from work for approximately three
weeks
and
was
ultimately
demoted
to
assistant
consequence of his inappropriate behavior.10
manager
as
a
Thus, this is not a
case where plaintiff's claims were manufactured out of whole cloth.
See Stover, 549 F.3d at 998 (action not frivolous where the record
contained some plausible evidence supporting plaintiff's claims).
For the Court to assess attorney's fees under such circumstances
would add substantially to the risks of litigation while also
undercutting the efforts of Congress to promote the rigorous
enforcement of Title VII.
Accordingly, defendants' request for
attorney's fees incurred in defending against plaintiff's Title VII
claims against Velvet Cactus is denied.
2.
Defendants
Plaintiff's Title VII Claim Against Dickinson
further
argue
that
they
are
entitled
to
the
attorney's fees incurred in defending against plaintiff's Title VII
claim against Dickinson. Defendants contend that because Title VII
claims are only viable against an employer, plaintiff's Title VII
claim against Dickinson, as an individual, was unsupported by law
and therefore frivolous.
In response, plaintiff argues that he
"never pursued Title VII claims against Mr. Dickinson."11
9
R. Doc. 28-19.
10
R. Doc. 28-1 at 6-7.
11
R. Doc. 60 at 1.
7
As the Court held in its summary judgment order, a "claim
under Title VII is enforceable only against an employer, not an
employee."12 Accordingly, if plaintiff did assert a Title VII claim
against Dickinson, defendants are clearly entitled to attorney's
fees, as plaintiff's claim would have "relie[d] on an undisputably
meritless legal theory."
Doe, 440 F. App'x at 425.
See also
Provensal v. Gaspard, 524 F. App'x 974, 977 (5th Cir. 2013)
(concluding that plaintiff's "Title VII claims against Gaspard were
correctly deemed meritless and frivolous . . .[because] Gaspard was
not an employer and therefore could not be sued in his individual
capacity under Title VII").
Plaintiff's contention that he "never pursued Title VII claims
against Mr. Dickinson" is without merit. Before filing the summary
judgment motion, defendants contacted plaintiff, highlighted the
futility of a Title VII claim against Dickinson in his individual
capacity,
and
requested
Plaintiff did not do so.
plaintiff
to
withdraw
the
claim.13
Additionally, plaintiff did not respond
to Dickinson's motion for summary judgment on plaintiff's Title VII
claim against Dickinson and did not otherwise inform the defendants
or the Court that he did not intend to pursue such a claim.
12
Thus,
R. Doc. 68 at 19 (citing Franklin v. City of Slidell, 928
F. Supp. 2d 874, 881 (E.D. La. 2013) ("The Fifth Circuit has also
repeatedly held . . . that individuals, in particular employees
and supervisors, cannot be held liable under Title VII in either
their individual or official capacities.")).
13
R. Doc. 58-2 at 35.
8
plaintiff
had
ample
opportunity
before
this
Court's
summary
judgment order to withdraw the claim and cannot now argue that he
never pursued a Title VII claim against Dickinson.
Accordingly,
the Court finds that plaintiff brought a frivolous Title VII claim
against defendant Dickinson.
3.
Defendants' Attorney's Fee Award
Having determined that plaintiff's Title VII claim against
Dickinson
was
frivolous,
the
Court
now
turns
to
the
proper
attorney's fee award. In his complaint, plaintiff alleged the same
Title
VII
claims
against
Dickinson
and
Velvet
Cactus.
Nevertheless, as discussed above, only the Title VII claims against
Dickinson were frivolous.
Accordingly, defendants are entitled
only to attorney's fees that "would not have accrued but for the
frivolous claim" against Dickinson.
Fox, 131 S. Ct. at 2216.
Having reviewed the record, defendants' attorneys' invoices,
and the applicable law, the Court finds that defendants are
entitled only to reasonable attorney's fees incurred in drafting
the section of Dickinson's summary judgment motion dedicated to
plaintiff's Title VII claims against Dickinson.14
Indeed, with the
exception of time billed for drafting the one-paragraph section of
Dickinson's motion, all attorney's fees incurred in defending
14
The remainder of Dickinson's four-page summary judgment
motion is dedicated to plaintiff's state law claims. The Court
did not reach the merits of these claims and instead declined to
exercise jurisdiction over these pendent state law claims.
9
against plaintiff's frivolous Title VII claims against Dickinson
would have accrued in defending against the parallel, non-frivolous
Title VII claims against Velvet Cactus. These claims were based on
the same factual predicate--Dickinson's alleged unwelcome sexual
advances--and required the same factual development and legal
analysis.
After careful examination of defendants' attorneys'
invoices, the Court is unable to find any work, with the exception
of time billed for drafting the discrete section of Dickinson's
summary judgment motion, that would not have been incurred but for
the
plaintiff's
frivolous
Title
VII
claim
against
Dickinson.
Accordingly, the Court concludes that defendants are entitled only
to the reasonable attorney's fees incurred in drafting the section
of Dickinson's summary judgment motion dedicated to plaintiff's
Title VII claims against Dickinson.
To calculate reasonable attorney's fees, the Fifth Circuit
uses
the
"lodestar"
method,
which
involves
multiplying
the
reasonable number of hours spent by a reasonable hourly rate for
such work in the community.
Heidtman v. County of El Paso, 171
F.3d 1038, 1043 (5th Cir. 1999).
A court may then enhance or
decrease the lodestar based on the twelve factors set out in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974).
Here, defendants' attorneys billed a total of 2.6 hours to
draft the "motion for summary judgment on behalf of defendant Scott
10
Dickinson arguing the absence of a Title VII claim and failed
sexual harassment claim."15
The summary judgment motion dedicates
one paragraph, comprised of five sentences, to plaintiff's Title
VII claims against Dickinson.16
The remainder of Dickinson's
summary judgment motion is dedicated to plaintiff's state law
claims.
Accordingly, the Court finds one hour, out of the 2.6
hours spent on drafting the whole motion, to be a reasonable time
to spend on the one paragraph addressing plaintiff's frivolous
Title VII claim against Dickinson.
The Court further finds that
the billed rate, $180.00, to be a reasonable hourly rate for
attorneys
of
a
similar
caliber
practicing
in
the
community.
Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th
Cir. 1995) (holding that when hourly rate is not contested, "it is
prima facie reasonable") (internal citations omitted).
III. Conclusion
For the foregoing reasons, the Court finds that defendants are
entitled to the reasonable attorney's fees incurred in defending
against plaintiff's frivolous Title VII claim against Dickinson.
Defendants
defending
are
not
against
entitled
plaintiff's
against Velvet Cactus.
15
attorney's
non-frivolous
fees
Title
incurred
VII
in
claims
Therefore, the Court GRANTS IN PART
R. Doc. 58-2 at 27.
16
to
R. Doc. 29-1 at 2.
11
defendants'
motion
for
attorney's
fees
and
awards
defendants
attorney's fees in the amount of $180.00.
New Orleans, Louisiana, this 25th day of November, 2014.
___
_____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
12
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