Allen et al v. Lowe et al
ORDER AND REASONS granting Defendants' Request for Attorney's Fees. Defendants shall file a Motion for Attorney's Fees before the Magistrate Judge within 20 days of this Order. Signed by Judge Jane Triche Milazzo. (NEF: Judge Roby)(ecm) Modified document type on 3/9/2015 (ecm).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
L WALKER ALLEN, II
ROBERT C LOWE, ET AL
ORDER AND REASONS
On September 9, 2014, this Court dismissed Plaintiff's claims pursuant to
42 U.S.C. § 1983 and the Louisiana Unfair Trade Practices Act, La. Rev. Stat.
51:1401, et seq ("LUTPA") with prejudice. The Court also ordered the parties to
submit briefing regarding Defendants' request for reasonable attorney's fees
incurred in defense of the dismissed claims (Doc. 14). The Court now holds that
the section 1983 and LUTPA claims were objectively groundless and brought in
bad faith. Accordingly, Defendants' request for attorney's fees is GRANTED,
and this matter is referred to the Magistrate Judge for a report and
recommendations regarding the quantum of the award.
Plaintiff filed this suit seeking damages arising out of several events that
occurred during the course of his divorce proceeding in Louisiana state court.
Defendants Robert Lowe, Jeffrey Hoffman, and the law firm of Lowe, Stein,
Hoffman, Allweiss & Hauver, LLP, represented Plaintiff's wife, Susan Martin.1
While the divorce action was pending, Plaintiff filed a separate suit in Louisiana
state court seeking the partition of a vehicle that Plaintiff alleged was co-owned
by him and Ms. Martin. The parties to the automobile partition proceeding
(Plaintiff and Ms. Martin) jointly requested that the partition proceeding be
transferred to the judge who was presiding over the divorce, Judge Devereux.
Prior to the filing of the partition proceeding, Judge Devereux ordered that
Ms. Martin be given exclusive use of the vehicle during the pendency of the
divorce. After the partition action was consolidated before Judge Devereux, she
issued an oral order compelling Plaintiff to surrender title of the vehicle to Ms.
Martin. Plaintiff's counsel was present when the oral order was issued. On the
date that Plaintiff was to surrender title, his attorney refused to comply. In
response, Defendants, on Ms. Martin's behalf, moved to hold Plaintiff in
contempt for violating the oral order and sought attorney's fees in connection
with the contempt motion. The state court ordered that the contempt motion be
set before a hearing officer on December 19, 2012. On that same date, Judge
Devereux held a hearing on several unrelated pending motions. The court then
elected to waive the proceeding before the hearing officer and handle the
Ms. Martin was named as a defendant in this suit but was never served.
contempt motion itself. Counsel for Plaintiff was present. Judge Devereux
granted the motion for contempt and ordered Plaintiff to surrender the title that
day and to pay attorney's fees to Defendants and a $1,000 sanction. Judge
Devereux also ordered that, if Plaintiff failed to obey the contempt order, he
would be sentenced to thirty days in the parish jail. Plaintiff complied with the
contempt order promptly.
Plaintiff sought supervisory review of the contempt order through the
Louisiana courts and later argued that the district court lacked subject matter
jurisdiction over the partition action.
Both arguments were ultimately
The contempt judgment was affirmed on direct appeal in
December of 2014.3
On December 19, 2013, Plaintiff filed the instant suit in Louisiana state
court alleging that Defendants' conduct in the divorce and partition proceedings
violated 42 U.S.C. § 1983 and LUTPA. Defendants removed the suit to this
court and filed a motion to dismiss arguing that Plaintiff failed to state a claim
for a violation of either statute. Defendants also requested reasonable attorney's
fees associated with their defense of the section 1983 and LUTPA claims
pursuant to 42 U.S.C. § 1988 and La. Rev. Stat. § 51:1409, respectively.4 Despite
the fact that the motion to dismiss remained pending for nearly seven months,
Allen v. Allen, 132 So. 3d 380 (La. 2013) (denying supervisory review of the contempt
order); Allen v. Allen, – So.3d. –, 2014 WL 1800077 (La. May 7, 2014) (finding that the state
judge had subject matter jurisdiction over the partition action).
Allen v. Allen, 2013-0996, 2014 WL 7368574 (La. Ct. App. 1 Cir. Dec. 29, 2014).
See 42 U.S.C. § 1988 (permitting recovery of attorney's fees in § 1983 cases); La. Rev.
Stat. § 51:1409(A) (permitting recovery of attorney's fees in LUTPA cases).
Plaintiff never filed an opposition. The Court granted the motion to dismiss but
deferred ruling on the request for attorney's fees, offering Plaintiff one last
opportunity to be heard. On October 27, 2014, eight months after the motion to
dismiss was filed, Plaintiff filed a brief arguing that the action was meritorious
and that Defendants were not entitled to attorney's fees.
LAW AND ANALYSIS
Defendants seek attorney's fees incurred in defending two of Plaintiff's
claims. The Court will address each claim separately.
I. The § 1983 Action
Pursuant to 42 U.S.C. § 1988, a court may, in its discretion, award
attorney's fees to the prevailing party in a section 1983 action. "A prevailing
defendant is entitled to fees only when a plaintiff's underlying claim is frivolous,
unreasonable, or groundless."5 "[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."6 "To determine whether a claim
is frivolous or groundless, [the Fifth Circuit has] stated that 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."7
In the Order dismissing this case, the Court held that Plaintiff had failed
Myers v. City of W. Monroe, 211 F.3d 289, 292 (5th Cir.2000).
Offord v. Parker, 456 F. App'x 472, 474 (5th Cir. 2012).
Doe v. Silsbee Indep. Sch. Dist., 440 F. App'x 421, 425 (5th Cir. 2011).
to state a section 1983 claim because Defendants are not state actors and the
petition was devoid of any allegations suggesting that Defendants engaged in a
conspiracy with state actors. It is well-established law that a private individual
may not be held liable under section 1983 in the absence of a conspiracy between
the private individual and a state actor.8 Plaintiff's petition not only fails to
allege a conspiracy between Defendants and a state actor but alleges that
Defendants deceived Judge Devereux into violating the law. The Court noted in
the Order that it appeared that the section 1983 claim was frivolous but
permitted Plaintiff an opportunity to argue otherwise.
In response to Defendants' request for attorney's fees, Plaintiff presents
two arguments. First, he argues that the Court's order dismissing the case was
legally incorrect. Plaintiff does not, however, cite a single relevant case in
support of his argument that this action had arguable merit.9 Second, Plaintiff
argues that the Court should have permitted him to present evidence in support
of his claim.
This argument is spurious.
Defendant's Motion to Dismiss
remained pending before this Court for nearly seven months, during which
Plaintiff made absolutely no attempt to present any evidence or argument in
support of his claims. Plaintiff cannot now claim that it was the Court, rather
than Plaintiff's own inaction, that deprived him of the opportunity to present
Ballard v. Wall, 413 F.3d 510, 518 (5th Cir. 2005).
Plaintiff cites one Louisiana Supreme Court disciplinary opinion that held it was
improper for a trial judge to permit an attorney to "egg him on" to an improper result. In re
Cresap, 940 So. 2d 624, 635 (La. 2006). That case is wholly unrelated to the present matter.
In Cresap, the Court was commenting on appropriate judicial conduct. The Court did not
mention, much less discuss, section 1983.
arguments in support of his claim.
While the Court has no difficulty concluding that Plaintiff's section 1983
claim was frivolous, the Court must still consider the factors identified by the
Fifth Circuit. The Court has already concluded that Plaintiff failed to plead,
must less prove, facts sufficient to establish a prima facie case. Additionally,
there is no evidence that Defendants ever offered to settle the case, and the
Court dismissed the case pursuant to Rule 12(b)6. Accordingly, all of the factors
weigh in favor of awarding attorney's fees. Finally, the Court also notes that the
Fifth Circuit has previously upheld attorney's fee awards under similar
circumstances.10 Accordingly, the Court holds that Defendants are entitled to
attorney's fees under 42 U.S.C. § 1988.
II. The LUTPA Action
Defendants also seek attorney's fees incurred in defense of Plaintiff's
LUTPA claim. LUTPA permits prevailing defendants to recover attorney's fees
only when the action "was groundless and brought in bad faith or for purposes
of harassment."11 As the Court explained in its Order dismissing the case,
Plaintiff's LUTPA claim is groundless because the Louisiana Supreme Court has
held that unethical and/or abusive litigation conduct does not give rise to an
action under the statute.12
Furthermore, the Court has little difficulty concluding that this action was
Offord, 456 F. App'x at 474 (affirming award of attorney's fees in suit brought by a
losing litigant against opposing counsel where plaintiff failed to properly allege a conspiracy
between opposing counsel and the trial court).
La. Rev. Stat. § 51:1409.
Quality Envtl. Processes, Inc. v. I.P. Petroleum Co., 144 So. 3d 1011, 1026 (La. 5/7/14).
brought in bad faith or for purposes of harassment. Indeed, it appears that
Plaintiff brought this suit as a litigation tactic in the divorce proceeding. In this
suit, Plaintiff alleges that Defendants were engaged in a conspiracy with their
client, Ms. Martin. After this suit was filed, Plaintiff sought to disqualify
Defendants from representing Ms. Martin in the divorce proceeding, arguing
that this lawsuit had created a conflict of interest between Ms. Martin and
Defendants.13 As explained above, Plaintiff, himself an attorney, could not have
reasonably believed that this lawsuit had merit. Therefore, in the absence of any
other evidence, the Court concludes that Plaintiff brought this suit in an effort
to create a conflict of interest so that he could seek disqualification of his wife's
divorce attorneys. This is not a legitimate legal reason. Accordingly, the Court
finds that this action was brought in bad faith and for the purposes of
harassment and that Defendants are entitled to attorney's fees under LUTPA.
In the end, this case is rather simple. A state court judge orally ordered
Plaintiff to turn over the title and keys to an automobile, on the record, and in
the presence of counsel. Plaintiff disobeyed the order, so the state court judge
held Plaintiff in contempt. Plaintiff disagreed with the contempt order and
challenged it through every available process. Dissatisfied with the result in the
available processes, Plaintiff decided to file a frivolous suit against opposing
When opposing counsel moved to dismiss that suit, Plaintiff did
nothing. Now, faced with the prospect of another award against him, Plaintiff's
interest in this suit is suddenly renewed. Unfortunately for Plaintiff, the suit
remains as frivolous as it was the day it was filed. Therefore, the Court will
award Defendants reasonable attorney's fees incurred in the defense of
For the foregoing reasons, Defendants' request for attorney's fees is
GRANTED. Defendants shall file a Motion for Attorney's Fees before the
Magistrate Judge within 20 days of this Order.
New Orleans, Louisiana, this 9th day of March, 2015.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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