Utica Community Schools v. Alef

Filing 20

ORDER DISMISSING Plaintiff's 1 Complaint. Signed by District Judge Robert H. Cleland. (SBur)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UTICA COMMUNITY SCHOOLS
Plaintiff,
v.

Case No. 13-14022

RICHARD J. ALEF,
Defendant.
/
ORDER DISMISSING PLAINTIFF’S COMPLAINT
This court ordered Plaintiff to show cause why its complaint should not be
dismissed for failure to prosecute in light of the long delay since any progress at all has
been made in this case. (Dkt. #15.) The order also mentioned that Defendant, who
serves as counsel in a separate case against Plaintiff, Somberg v. Utica Community
Schools, No. 13-11810, has succeeded on the merits in that case, which seems to moot
the instant matter. (Dkt. #15.) Plaintiff filed a timely response, (Dkt. #16), and Defendant
also filed a reply, (Dkt. #17).
Plaintiff claims that Defendant, despite being successful in the underlying case,
should have to pay fees which Plaintiff incurred for having to respond to “frivolous and
unreasonable claims,” which Defendant made during the administrative proceeding in
the underlying case, but which did not support recovery by his client. In particular
Plaintiff points to an allegation of a “phantom IEP meeting” having been “cut from whole
cloth.” (Dkt. #16, Pg. ID 400.) Plaintiff relies in part on the Supreme Court’s decision in
Fox v. Vice, which held that, in instances where a plaintiff has succeeded on some

claims and made other frivolous claims, the operative statute “permits defendant to
receive only the portion of his fees that he would not have paid but for the frivolous
claim.” 563 U.S. 826, 836 (2011) (“We emphasize, as we have before, that the
determination of fees ‘should not result in a second major litigation.’”) (citation omitted).
The court went on to explain that “the dispositive question is not whether attorney costs
at all relate to a non-frivolous claim, but whether the costs would have been incurred in
the absence of the frivolous allegation.” Id. at 838. Here, Plaintiff asserts that some of
the allegedly frivolous claims were substantially the subject of an administrative hearing
and were stricken by the administrative law judge. (Dkt. #16-1.)
In reply Defendant argues that the ALJ opinion reflects that his clients were truly
successful in their underlying case against Plaintiff on two counts and that the
transcripts of the hearing evidence that Plaintiff actually admitted to violations as to the
other two counts as well. Defendant also argues that Count I of the complaint alleging
false statements in the amended administrative complaint merely parrots a counterclaim
which was rejected by this court in the other case. Finally, it argues that Count II of the
complaint, alleging that the amended administrative complaint contained allegations
legally insufficient or beyond the jurisdictional scope of the proceedings, lacks merit
because Plaintiff merely asserted general denials at the administrative hearing to these
allegations and it was Plaintiff’s own actions which necessitated the amendments to its
answer.
Plaintiff is generally correct about determining the prevailing party on a
piecemeal basis. The Supreme Court held that “a plaintiff may present in one lawsuit
distinctly different claims for relief that are based on different facts and legal theories.”
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Hensley v. Eckerhart, 461 U.S. 424, 434–35 (1983). In such cases, “counsel’s work on
one claim will be unrelated to his work on another claim[, such that] work on an
unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate
result achieved.” Id. The instant case does not appear to match that description at all,
as time spent at the administrative hearing was not meaningfully dedicated to allegedly
“frivolous” claims such that costs would not have otherwise been incurred, nor is there a
serious divide in the body of facts or issues of law which supported a finding of liability
against Plaintiff and those which were stricken by the ALJ. The court does not conclude
that Plaintiff’s allegations support a finding that it was a prevailing party. Moreover, the
Sixth Circuit has held that “an award of attorney's fees against a losing plaintiff in a civil
rights action is an extreme sanction, and must be limited to truly egregious cases of
misconduct.” Jones v. Cont'l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986). Even if the
court had found that Plaintiff was a prevailing party in the other suit, the allegations here
do not rise to an egregious case of misconduct.
In any event, this court’s order called for an explanation for the lack of progress
on the case. (Dkt. #15.) No developments had been made since this court entered its
order on March 13, 2015, denying summary judgment without prejudice until cross
motions for judgment on the administrative record were resolved in the underlying case.
(Dkt. #13.) Those motions were resolved on March 30, 2016. (Dkt. #30.) Nowhere does
Plaintiff’s filing attempt to explain this long inertia totaling nearly nine months. Thus, it
has failed to show cause why the case should not be dismissed for failure to prosecute.
Due to the apparent futility of amendment in virtue of the weakness of Plaintiff’s claims
as discussed above, dismissal will be with prejudice.
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IT IS ORDERED that Plaintiff’s Complaint (Dkt. #1) is DISMISSED. A separate
judgment will issue.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: February 9, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, February 9, 2017, by electronic and/or ordinary mail.

s/Shawna C. Burns
Case Manager Generalist
[phone]
S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-14022.SOMBERG.dismiss.bss.wpd

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