Carter v. Hickory Healthcare Inc. et al
Filing
130
Memorandum Opinion and Order: Plaintiff's motion for reconsideration (Doc. No. 121 ) is granted; but, upon reconsideration, the Court adheres to its original decision to award attorney fees and costs under 28 U.S.C. Section 1927. This matter is now referred to Magistrate Judge Burke for a final determination of the amount of fees and costs to award in favor of defendants against plaintiff's counsel. See 28 U.S.C. Section 636(b)(3). Magistrate Judge Burke is directed to apply her intimate knowledge of the procedural development of this case to determine an appropriate amount for the award. Within 14 days of the date of this order, defendants shall file a brief documenting the amount to which they believe they are entitle d. Plaintiff's opposition shall be filed within 14 days after defendants' brief. No additional briefs will be permitted absent leave of Magistrate Judge Burke. Finally, counsel are encouraged to use their best efforts to mutually agree upon an appropriate award so as to avoid both the need for the magistrate judge to decide and the need for any appeal. This matter should be put to rest as amicably as possible and everyone should move on. Judge Sara Lioi on 10/5/2016. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
STYLA Y. CARTER,
PLAINTIFF,
vs.
HICKORY HEALTHCARE INC., et al.,
DEFENDANT.
)
)
)
)
)
)
)
)
)
)
)
CASE NO. 5:14-cv-2691
JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER
Before the Court is plaintiff’s motion for reconsideration (Doc. No. 121, Sealed [“Mot.”])
of the Memorandum Opinion and Order dated July 29, 2016 (Doc No. 118 [“MOO”]) that
granted in part defendants’ motion for attorney fees and costs. Defendants filed their opposition
(Doc. No. 122, Sealed [“Opp’n”]) and plaintiff filed a reply (Doc. No. 123, Sealed [“Reply”]).
For the reasons set forth herein, reconsideration is granted, but, upon such reconsideration, the
original MOO stands.
I. BACKGROUND
On July 29, 2016, the Court granted in part defendants’ motion for an award of attorney
fees and costs, and set up a briefing schedule for determination of the amount. 1 Although
restating its earlier rejection of Fed. R. Civ. P. 11 as a basis for fees and costs (see Doc. No. 112
at 1466-68),2 and although further rejecting Title 42 as another basis, the Court granted fees and
costs under 28 U.S.C. § 1927, which provides that “[a]ny attorney … who so multiplies the
1
That briefing schedule has been suspended pending resolution of the motion for reconsideration. (See Doc. No.
120.)
2
All page number references are to the page identification number generated by the Court’s electronic docketing
system.
proceedings in any case unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such
conduct.”
Plaintiff3 now challenges this determination, pointing to counsel’s lack of a sufficiently
culpable state of mind and to his belief that the case had settled during mediation.
II. DISCUSSION
A brief review of the factual background will be helpful. Plaintiff’s complaint alleging a
violation of the Americans with Disabilities Act was filed on December 9, 2014. The right to sue
letter (“RTS”) was dated February 20, 2014, and there appears to be no dispute that it was not
actually received until November 4, 2014.
The significant time lag was caused by plaintiff’s failure to advise the EEOC of her new
address. In reliance upon a theory of equitable tolling of the 90-day period for filing a complaint
following the RTS letter, plaintiff’s counsel asserted that he had contacted the EEOC in late 2013
or early 2014 asking for the RTS letter. Although it was sent on February 20, 2014, it was not
received because it was sent to plaintiff’s former address, the only address of record. By letter
dated July 8, 2014, counsel made another request for the RTS letter. As of August 11, 2014,
plaintiff advised her counsel that she had not received the letter. Even so, counsel made no
further inquiry until November 3, 2014, and was thereafter sent a copy of the RTS letter that had
been mailed to plaintiff’s former address on February 20, 2014.
Plaintiff claimed she provided an updated address to the OCRC and assumed that entity
would advise the EEOC of the change. This Court concluded that, even taking that as true,
3
The MOO determined that the award of attorney fees and costs, once the amount was determined, would be levied
against plaintiff’s counsel. Although the motion and this opinion speak in terms of “plaintiff,” not “plaintiff’s
counsel,” that is merely for the sake of brevity. Any award remains plaintiff’s counsel’s obligation.
2
“nothing in the record explains the delays after plaintiff’s present counsel stepped into the case
and made a request for a right to sue letter.” (MOO at 1530, emphasis in original.)4 In light of
case law stating that equitable tolling does not apply if the RTS letter was not received due to
plaintiff’s failure to update her address, and due to the fact that the record showed plaintiff’s
counsel’s lack of vigilance after his initial request for the letter, the Court concluded that
sanctions under § 1927 were warranted for unreasonably and vexatiously multiplying the
proceedings by filing a clearly time-barred action and, more importantly, by failing to abandon
the claim even after the bar was pointed out to counsel during mediation, resulting in full
dispositive motion practice, followed by summary dismissal.
Plaintiff first argues that the imposition of sanctions under § 1927 “contravenes the
remedial purposes of our civil rights laws.” (Mot. at 1537.) Plaintiff asserts that, typically, only a
“prevailing party” is awarded fees and costs and that it is rare for a defendant to recover, even a
prevailing defendant. Plaintiff argues that defendants are not prevailing parties and should not
recover absent action by plaintiff that was “frivolous, unreasonable, or without foundation.”
(Mot. at 1537-38, n.1, comparing Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 88 S. Ct.
964, 10 L. Ed. 2d 1263 (1968) and Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.
Ct. 694, 54 L. Ed. 2d 648 (1978).)5
This argument ignores the fact that the Court, in denying defendants’ motion in part,
determined that “Title 42 does not support a claim for attorney fees” precisely because
defendants had not secured a judgment on the merits or entered into a court-ordered consent
decree and, therefore, were not “prevailing” parties. (MOO at 1526, citing Buckhannon Bd. &
4
Present counsel did not represent plaintiff during the administrative proceedings.
5
The two cases cited by plaintiff were brought under Title 42, and they add nothing to an analysis under § 1927.
3
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 600, 121 S. Ct. 1835,
149 L. Ed. 2d 855 (2001).)
Nor is plaintiff’s argument to any avail that counsel “did not intentionally pursue a
meritless claim, abuse the judicial process, engage in vexatious litigation, or otherwise act in bad
faith.” (Mot. at 1538.) This is a mere reassertion of arguments already made and rejected.
“Motions for reconsideration require more that the simple rehashing of previously rejected
arguments and facts.” Sunarto v. Mukasey, 306 F. App’x 957, 961 (6th Cir. 2009) (citations
omitted).
Plaintiff argues without citation to any case law that, because the Court imposed
sanctions, it necessarily called into question counsel’s credibility with respect to his assertion
that he pursued the case in good faith, and that, without a prior evidentiary hearing, his due
process rights were thereby violated.6 But due process is not implicated where, as here, plaintiff
and counsel both were clearly on notice, by way of defendants’ motion, as to the basis for a
possible award of fees and costs, and had ample opportunity to be heard by way of their
opposition brief. See, e.g., Cook v. American S.S. Co., 134 F.3d 771, 775 (6th Cir. 1998) (due
process was not violated where counsel “was given specific notice of the sanctioning authority
6
Plaintiff’s counsel also sought an evidentiary hearing on the motion for reconsideration, arguing that, in their
opposition to the motion, defendants had stated that “‘there is evidence casting doubt on Mr. Gilbert’s credibility.’”
(Doc. No. 124 at 1639, quoting Doc. No. 122 at 1614, n.3 (internal citation omitted).) The Court scheduled a hearing
but, after reviewing the briefing on the motion for reconsideration, decided that no hearing was necessary. When
plaintiff sought a continuance of the hearing for good cause (see Doc. No. 128), the Court simply canceled the
hearing.
The Court acknowledges that the statement about Mr. Gilbert’s credibility was indeed made in the
opposition brief. This was a gratuitous and uncalled-for statement by defendants’ counsel, and the Court strongly
admonishes counsel for this unprofessional behavior. This Court views all counsel as officers of the Court and trusts
that they take this responsibility seriously. The Court has no reason to disbelieve any factual assertion made by
counsel, including Mr. Gilbert, and has not done so in this order or in the MOO. Rather, the Court’s conclusion that
fees and costs are warranted under § 1927 is based on the fact that the record clearly supports a legal conclusion that
the case was time-barred from the start and, even taking as true plaintiff’s counsel’s assertion that he believed
otherwise when he filed the case, that the untimeliness became abundantly clear as the case proceeded and as
convincing case law was supplied to refute counsel’s erroneous belief.
4
being considered and the conduct alleged to be sanctionable, as well as an opportunity to be
heard”) (internal quotation marks and citation omitted).
Plaintiff also argues that this Court relied upon an incorrect view of what happened
during mediation and, on that incorrect basis, awarded sanctions. Plaintiff quotes the MOO as
stating that “if plaintiff’s counsel had conceded that the case was time-barred at the time of
mediation (when little discovery had yet occurred), the outcome here might be different. That did
not happen, causing the Court to lean toward granting an award[,]” and, further, “[b]ecause
plaintiff rejected defendants’ June 2015 mediation position that both claims were time-barred,
proceedings necessarily continued, including extension of discovery (at least partly due to
defendants’ almost complete failure to have engaged in timely discovery prior to the mediation
despite the looming discovery deadline), and ultimately the filing of a motion for summary
judgment. Again this weighs in favor of granting an award.” (Mot. at 1538-39, quoting MOO at
1529, 1529-30.)7
Plaintiff then asserts that counsel believed the case had settled on terms set forth by
Magistrate Judge Burke. Plaintiff explains that “[a]ccording to Attorney Gilbert’s notes, the last
demand [during mediation] was $100,000 and the last offer was $25,000.” (Mot. at 1541, citing
Gilbert Aff. ¶ 17, footnote omitted.) According to plaintiff, “The Magistrate Judge, after
reviewing both sides of the case, indicated to the Plaintiff and counsel that she thought the case
should settle for a ‘fair amount of $65,000.’” (Id.) Despite counsel’s advice to reject this offer,
plaintiff ordered counsel to accept it and that fact was communicated to the magistrate judge.
7
Plaintiff asserts that the Court gave defense counsel’s conduct “more lenient treatment[.]” (Mot. at 1544.) But any
actions of defense counsel that contributed to the multiplicity of proceedings (see MOO at 1529 – “Admittedly, not
all [the multiplicity] was the result of plaintiff’s counsel’s behavior; defendant’s [sic] counsel also substantially
contributed to excess filings with their attendant costs, expenses, and attorney fees.”) are considered in mitigation of
the amount of the sanction, not whether to grant it.
5
Then plaintiff’s motion states, rather inexplicably, that “[a]lthough … not privy to the
Defendant’s communications to Magistrate Burke, Attorney Gilbert felt this case had settled.”
(Id. at 1542.) Plaintiff points to nothing in the record to explain why she and her counsel would
have thought that defendant, whose last offer of settlement was apparently $25,000, would then
accept the magistrate judge’s suggestion of settling for $65,000 simply because plaintiff had
accepted it. Nonetheless, plaintiff now insists that “it was the Defendant who rejected the
financial suggestion of the Magistrate.” (Id. at 1543, underlining omitted.)
This argument is a red herring. The Court granted fees and costs under § 1927 not for any
failure to settle during mediation, either for $25,000 or for $65,000, 8 but because plaintiff’s
counsel pursued a case that was clearly time-barred. In assessing the issue of timeliness, the
Court noted that, although plaintiff may have “simply misunderstood the process and thought she
was complying with its requirements, nothing in the record explains the delays after plaintiff’s
present counsel stepped into the case and made a request for a right to sue letter.” (MOO at
1530.) In light of that fact, the Court ultimately concluded that plaintiff’s counsel “filed the
lawsuit and pursued it all the way through summary judgment despite having been advised at
least twice that case law confirmed the bar of untimeliness.” (Id. at 1531.) Whatever reference
this Court may have made to the mediation was in that context alone; even if the Court were to
take as true that experienced counsel such as plaintiff’s would have initially believed the action
was not time-barred, convincing case law in opposition was presented during mediation. Because
8
In hindsight, it seems that defendants were arguing that plaintiff rejected defendants’ $25,000 offer of settlement,
whereas plaintiff is now arguing that defendants rejected the magistrate judge’s suggestion of a $65,000 settlement.
In the end, it does not matter who rejected what because the Court used the facts surrounding the mediation only to
point out that, by refusing to accept the legal reality that the case was time-barred, pointed out during mediation,
plaintiff’s counsel caused the multiplying of proceedings. These facts, taken in light of the entire record, will go
toward the decision of how much to award and when the clock should start ticking.
6
counsel failed to avail himself of that opportunity to voluntarily dismiss, he left defendants with
no option but to proceed with a case that was ultimately summarily dismissed as time-barred.
III. CONCLUSION
For the reasons set forth herein, plaintiff’s motion for reconsideration (Doc. No. 121) is
granted; but, upon reconsideration, the Court adheres to its original decision to award attorney
fees and costs under 28 U.S.C. § 1927.
This matter is now referred to Magistrate Judge Burke for a final determination of the
amount of fees and costs to award in favor of defendants against plaintiff’s counsel. See 28
U.S.C. § 636(b)(3). Magistrate Judge Burke is directed to apply her intimate knowledge of the
procedural development of this case to determine an appropriate amount for the award.
Within 14 days of the date of this order, defendants shall file a brief documenting the
amount to which they believe they are entitled. Plaintiff’s opposition shall be filed within 14
days after defendants’ brief. No additional briefs will be permitted absent leave of Magistrate
Judge Burke.
Finally, counsel are encouraged to use their best efforts to mutually agree upon an
appropriate award so as to avoid both the need for the magistrate judge to decide and the need for
any appeal. This matter should be put to rest as amicably as possible and everyone should move
on.
IT IS SO ORDERED.
Dated: October 5, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?