Harker et al v. City of Tulsa et al
Filing
46
OPINION AND ORDER by Judge Terence Kern ; granting 36 Motion for Attorney Fees (vah, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
PAT HARKER,
JERROD HART,
Plaintiffs,
v.
CITY OF TULSA,
FRATERNAL ORDER OF POLICE,
LODGE NO. 93,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
No. 13-CV-740-TCK-TLW
OPINION AND ORDER
Before the Court is Defendant Fraternal Order of Police’s Motion for Attorney Fees
(Doc. 36), which requests fees pursuant to 28 U.S.C. § 1927 and Okla. Stat. tit. 12, § 2011.1.
I.
Background
Plaintiffs commenced this action in state court on October 4, 2013, and it was subsequently
removed to this Court. On April 1, 2014, the Court entered an Opinion and Order granting summary
judgment in favor of Defendant the City of Tulsa (“City”). The Court stated:
Plaintiffs have also asserted a claim against the FOP. The FOP has not filed an
answer or otherwise responded to the Complaint, and it is unclear whether the FOP
has been served with process. Plaintiffs are ordered to file a status report regarding
their remaining claim against the FOP no later than five days from entry of this
Order.
(Doc. 19 at 6.) On April 7, 2014, the Court first issued a summons to Defendant Fraternal Order of
Police (“FOP”). Plaintiffs did not serve this summons until August 5, 2014. By letter dated April
10, 2014, counsel for FOP, James Moore (“Moore”), offered to accept service on the condition that
Plaintiffs immediately dismiss FOP, thereby enabling Plaintiffs to appeal the judgment entered in
favor of the City. Moore stated:
Because the Plaintiffs did not issue summons within the 180-day period under State
law or the 120-day period under the Federal rules, I am confident the Court would
dismiss upon our motion. I am writing to seek to avoid the cost of the motion
practice to get to that point. If you disagree and force us to pursue dismissal, I will
seek fees for the unnecessary work to get the matter dismissed.
(Mot. for Fees, Ex. 1.) Plaintiffs’ lawyer, Jean Walpole Coulter (“Coulter”), did not respond.
Coulter did not respond. On August 5, 2014, the parties filed a Joint Status Report as ordered by
the Court. On August 7, 2014, Moore sent Coulter a second letter stating: “I am asking you again
to dismiss the case for a reason you are probably aware of by now, the statute of limitations has long
passed. As you know, the statute of limitations for a duty of fair representation claim is 6 months.”
(Id.) The letter again stated that, if the matter was not dismissed, Moore would seek attorney fees
if forced to file a motion to dismiss. Again, Coulter did not respond.
On August 22, 2014, FOP filed a motion to dismiss, arguing, inter alia, that the six-month
statute of limitations had expired.1 Coulter filed a response, and FOP filed a reply. In a three-page
Opinion and Order, the Court held that the statute of limitations had indeed expired on Plaintiffs’
claim against FOP:
This action was filed on October 14, 2013, more than six months after Plaintiffs
learned that the FOP would not represent them in their quest for promotions.
Therefore, the action was untimely and is barred by the applicable statute of
limitations. Plaintiffs argue that the clock began running on the “last day the FOP
could have filed a grievance on their behalf,” which was April 10, 2013, rather than
from the date of the FOP’s written rejection on November 14, 2012. The Court
rejects Plaintiffs’ argument for two reasons. First, the November 14, 2012 letter sets
forth a clear decision, supported by reasoning and explanation, not to represent
Plaintiffs with respect to their grievance submitted on October 30, 2012. In their
Petition, Plaintiffs expressly reference the November 14, 2012 letter as giving rise
to the failure to represent claim. Plaintiffs therefore had unequivocal notice on
November 14, 2012 that the FOP refused to file the grievance forming the basis of
this lawsuit. Second, there are no allegations, inferences, or other indications that
Plaintiffs submitted any subsequent grievances or requests to the FOP. Plaintiffs’
1
FOP did not raise untimeliness of service as a basis for dismissal.
2
argument that the statute of limitations did not commence until the last possible day
for filing a grievance is unpersuasive because a final decision had been made on
Plaintiffs’ grievance and there were no other pending requests.
(Doc. 34 at 2-3.)2
As warned in Moore’s letters, FOP sought attorney fees following this Court’s dismissal and
entry of judgment in its favor. FOP seeks attorney fees in the amount of $13,322.00, which
represents the amount of time spent by FOP’s counsel from April 1, 2014 to the date the FOP filed
its reply in support of its motion for fees.
II.
Fee Awards Under 28 U.S.C. § 1927
This statute provides:
Any attorney . . . who so multiplies the 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.
28 U.S.C. § 1927. In the Tenth Circuit, the imposition of fees under this statute does not require a
finding of bad faith. Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1202 (10th Cir. 2008).
Instead, conduct is sanctionable if, viewed objectively, it manifests either intentional or reckless
disregard of the attorney’s duties to the court. Id. The Tenth Circuit has further explained:
[S]anctions are not reserved for the worst offenders. This is particularly true of
sanctions under § 1927, which, as we explain below, are levied to compensate the
victims of dilatory practices, not as a means of punishment. For this reason, finding
a protracted course of vexatious conduct is unnecessary. The mere imposition of a
sanction under this section does not, without more, necessarily reflect on the moral
character of the offender. Sanctions may be appropriate, rather, in response to
“objectively unreasonable” conduct. Where, “pure heart” notwithstanding, an
attorney’s momentarily “empty head” results in an objectively vexatious and
unreasonable multiplication of proceedings at expense to his opponent, the court may
hold the attorney personally responsible.
2
Both of the Court’s substantive opinions (Docs. 19 & 34) are incorporated herein by
reference, and this Order assumes general familiarity with them.
3
Id. at 1203 (citation omitted). Sanctions under § 1927 may be sought against an attorney after final
judgment has been entered because “it may become apparent only at or after the litigation’s end”
that sanctions are appropriate. Steinert v. Winn Group, Inc., 440 F.3d 1214, 1223 (10th Cir. 2006)
(rejecting contrary rule in Third Circuit that § 1927 becomes inoperable after disposition of a case).
III.
Findings Supporting Sanction
The Court finds sanctions against Coulter appropriate under 28 U.S.C. § 1927. Although
FOP was named as a Defendant, Coulter initially prosecuted the case solely against the City and
sought injunctive relief only against the City. While her motion for injunctive relief against the City
was pending, Coulter allowed the time for serving FOP to lapse. She served FOP with process only
after this Court granted judgment in favor of the City and inquired as to the status of claims against
FOP. Moore, in an attempt to be cooperative and avoid having to file a motion to dismiss, informed
Coulter that it would accept untimely service if Plaintiffs would agree to dismiss it, such that
Plaintiffs could receive a final judgment and file an appeal. Moore sent a second letter addressing
other reasons that prosecution of Plaintiffs’ claim against FOP would be meritless, including that
the six-month statute of limitations on Plaintiffs’ failure to represent claim had expired. This letter
set forth the precise factual basis and argument ultimately adopted by the Court in granting FOP’s
motion to dismiss. Coulter failed to respond to either letter, forcing FOP to file a motion to dismiss,
and requiring this Court to address FOP’s motion prior to entering any final judgment.3
Although Coulter responded to FOP’s motion to dismiss, her arguments were frivolous,
lacking in merit, and objectively unreasonable. Her only argument was that the statute of limitations
did not start running until the last possible day FOP could have filed a grievance on Plaintiffs’
3
FOP did not raise untimeliness of service as grounds for dismissal.
4
behalf. This argument was not supported by Plaintiffs’ own allegations in the Complaint, which
expressly referenced the November 14, 2012 letter as the specific denial giving rise to her claim
against FOP. Notwithstanding this glaring contradiction between the facts pled and the “last
possible date” argument, Coulter still may have had a reasonable basis for her argument had there
been a second outstanding request for FOP to file a grievance, such that Plaintiffs possibly suffered
some second harm on April 10, 2013 (based on FOP’s inaction). But no such facts were pled or
even argued. As the record stood, FOP clearly made its decision in November, Plaintiff cited the
November decision in her Complaint, no additional requests to file a grievance were made, and there
was no additional harm suffered after the November denial. Coulter had no objectively reasonable
basis for opposing FOP’s motion to dismiss.
Standing alone, an unreasonable argument in response to a motion to dismiss may not cause
the Court to enter sanctions under § 1927. However, Coulter’s conduct becomes more vexatious and
unreasonable in light of: (1) her initial failure to timely serve FOP; (2) Moore’s attempts to avoid
having to file the motion to dismiss; (3) Moore’s detailed explanation of the facts and law – the same
facts and law ultimately relied upon by this Court for dismissal – to which Coulter had no colorable
response; and (4) Coulter’s failure to respond or communicate with Moore as to why she believed
her claim against FOP could proceed. Viewed objectively, Coulter’s conduct resulted in vexatious
and unreasonable multiplication of proceedings at expense to her opponent, and the Court therefore
finds it appropriate to hold Coulter personally responsible for forcing FOP to file a motion to dismiss
and forcing this Court to rule upon the motion.
5
IV.
Amount of Fee Award
FOP seeks fees in the total amount of $13,322.00, which includes all time spent after the City
was dismissed. The fee application is supported by Moore’s affidavits and time records for himself,
Douglas Vernier, and Jessica Forgue. Coulter has not objected to the reasonableness of hourly rates
or amount of time spent.
The Court finds that sanctions are appropriate only for time spent by FOP’s counsel on the
motion to dismiss and motion for attorneys’ fees, rather than for all time spent following the Court’s
entry of summary judgment in favor of the City. It is the express warning provided in Moore’s
letters and the absence of any colorable basis for objecting to the motion to dismiss that renders
sanctions appropriate. The sanction award is therefore limited to time entries dated Sunday, August
17, 2014 though March 17, 2015. The Court further finds the requested rates – $250.00 hour for
Moore and Vernier and $85.00 for Forgue – to be reasonable and similar to fees sought by
Oklahoma practitioners in comparable matters. Applying these rates to these entries, the Court
imposes sanctions against Coulter in the total amount of $10,775.50, comprised of $7,525 incurred
by Moore, $1,525 incurred by Vernier, and $1,725.50 incurred by Forgue.
V.
Conclusion
FOP’s motion for fees (Doc. 36) is GRANTED in the total amount of $10,775.50 pursuant
to 28 U.S.C. § 1927. This fee award is imposed as a sanction against Coulter, and the Court shall
enter a separate judgment.
SO ORDERED this 9th day of July, 2015.
6
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?