Dulin v. Board of Commissioners of the Greenwood Leflore Hospital

Filing 228

ORDER denying without prejudice 217 Motion for Attorney Fees. Signed by District Judge Sharion Aycock on 09/30/2013. (bkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
GEORGE DULIN

PLAINTIFF

V.

CIVIL ACTION NO.: 4:07-CV-194-A-V

BOARD OF COMMISSIONERS OF THE
GREENWOOD LEFLORE HOSPITAL

DEFENDANT

ORDER
Following a jury verdict in favor of Plaintiff George Dulin on his claims of racial
discrimination in violation 42 U.S.C. §§ 1981 and 1983, Plaintiff has filed a Motion for Attorney
Fees and Expenses [217]. For the following reasons, the Court finds Plaintiff’s motion should be
denied without prejudice.
Factual and Procedural Background
In this action for racial discrimination brought pursuant to 42 U.S.C. §§ 1981 and 1983,
Plaintiff George Dulin claims he was terminated from his position as the attorney for the
Defendant Board due to his race.

This case was first tried in January 2010, whereupon at the

conclusion of Plaintiff’s case, the Court granted Defendant’s motion for judgment as a matter of
law. Plaintiff appealed, and the Fifth Circuit reversed and remanded the case “in light of the
Supreme Court’s holding in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148,
120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) that a ‘plaintiff's prima facie case [of discrimination],
combined with sufficient evidence to find that the employer’s asserted justification [for
termination] is false, may permit the trier of fact to conclude that the employer unlawfully
discriminated.’” Dulin v. Bd. of Comm’rs of Greendwood Leflore Hosp., 657 F.3d 251, 251-52

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(5th Cir. 2011).1 Accordingly, the Fifth Circuit determined that “there is a triable issue of fact
that requires a jury to decide fact and credibility issues.” Id. at 251.
The case proceeded to trial a second time, and the jury found in favor of Plaintiff.
Specifically, the jury found that Plaintiff’s race was a motivating factor in Defendant’s decision
to terminate his employment, and that Defendant had failed to prove that it would have made the
same decision even had it not considered Plaintiff’s race. The jury awarded Plaintiff back pay in
the amount of $12,000 and compensatory damages in the amount of $70,000 for “emotional pain
and suffering, inconvenience, mental anguish, and loss of enjoyment of life.” Defendant has
appealed, and the parties are currently awaiting decision by the Fifth Circuit.
Analysis and Discussion
The general rule in our legal system is that each party must pay its own attorney’s fees
and expenses, see Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 76 L. Ed. 2d 40
(1983), but Congress enacted 42 U.S.C. § 1988 in order to ensure that federal rights are
adequately enforced. Section 1988 provides that “[i]n any action or proceeding to enforce . . .
[42 U.S.C. § 1983] . . ., the court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs . . . .” 42 U.S.C. § 1988(b). The Fifth Circuit has
held that prevailing parties are entitled to attorney’s fees under § 1988 for time spent establishing
and litigating a fee claim as well as for time spent prosecuting the merits of the civil rights

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Although the Defendant Board maintains that Reeves is inapplicable to the present case, this
argument is precluded by the law of the case doctrine. Under the law of the case doctrine, any
legal or factual decisions made by the appellate court must be followed in all subsequent
proceedings in the same case unless: (1) the evidence in a subsequent trial is substantially
different; (2) the prior decision was “clearly erroneous and would work manifest injustice;” or
(3) controlling authority has in the interim made a contrary decision of law applicable to the
disputed issue. Falcon v. Gen. Tele. Co., 815 F.2d 317, 320 (5th Cir. 1987). None of these
exceptions to the doctrine apply.
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action. Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985); Johnson v. State of Mississippi, 606
F.2d 635, 637-38 (5th Cir. 1979).
Though Defendant has filed a notice of appeal, the Court retains jurisdiction over
Plaintiff’s motion. Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 524 (5th Cir. 2002)
(“The district court, however, retains jurisdiction to resolve motions for sanctions and attorneys'
fees while a judgment on the merits is pending on appeal.” ). However, the Court is not required
to resolve such matters before the appeal is resolved. The 1993 Advisory Committee Note to
Federal Rule of Civil Procedure 54(d)(2) states: “If an appeal on the merits of the case is taken,
the court may rule on the claim for fees, may defer its ruling on the motion, or may deny the
motion without prejudice, directing under subdivision (d)(2)(B) a new period for filing after the
appeal has been resolved.” See also Echols v. Parker, 909 F.2d 795, 799 (5th Cir. 1990) (“[A]
motion for § 1988 attorney’s fees should be treated as a motion for costs under FRCP 54(d) and
58.”); Kirmer v. Goodyear Tire & Rubber Co., 2012 WL 2564955 (E.D. La. July 2, 2012)
(adopting recommendation of U.S. magistrate judge to dismiss without prejudice plaintiff’s rule
54 motion for attorney fees as premature); Art Midwest, Inc. v. Clapper, 2004 WL 877613 (N.D.
Tex. Apr. 20, 2004) (adopting recommendation of U.S. magistrate judge to deny rule 54 motions
without prejudice to renewal after disposition of appeal on the merits); Rau v. Apple-Rio Mgmt.
Co., Inc., 2000 WL 35591645 (N.D. Ga. March 29, 2000) (“[I]f one or both of the parties appeal.
. . . , it may be more efficient to defer ruling on additional fees and expenses until after the appeal
is resolved.”).
Given the procedural background of this matter, the Court finds that delaying resolution
of Plaintiff’s request for fees and expenses until the appeal on the merits has been decided is the
more prudent course of action. Immediate resolution of the collateral issues of attorney fees and

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expenses is unlikely to assist the Court of Appeals. Therefore, in order to avoid the piecemeal
resolution of fees that would necessarily follow from ruling on Plaintiff’s request for fees prior to
a decision on the second appeal of this matter, the Court denies Plaintiff’s motion without
prejudice to his right to re-file such motion no later than fourteen days after a ruling on the merits
by the Court of Appeals is entered on the docket of the United States District Court for the
Northern District of Mississippi.
Conclusion
Plaintiff’s Motion for Attorney Fees and Expenses [217] is DENIED without prejudice to
renewal following resolution of the appeal currently pending before the Court of Appeals.
SO ORDERED, this the 30th day of September, 2013.
_/s/ Sharion Aycock
_
UNITED STATES DISTRICT JUDGE

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