Crotty et al v. Windjammer Village of Little River South Carolina Property Owners Association

Filing 84

ORDER denying 72 Motion for Attorney Fees. Signed by Chief Judge R Bryan Harwell on 4/29/2019.(hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Elizabeth Ann Crotty, and James
Kenneth Orzech,

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Plaintiffs,
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vs.
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Windjammer Village of Little River,
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South Carolina, Property Owners’
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Association, Inc.,
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Defendant.
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____________________________________)

Civil Docket No.: 4:15-cv-04042-RBH

O RDE R

On September 29, 2015, Plaintiffs filed this lawsuit alleging violations of federal and state
housing laws against Defendant Windjammer Village of Little River, South Carolina, Property
Owners’ Association, Inc. (“Windjammer Village”). On September 24, 2018, this court granted
summary judgment in favor of Windjammer Village after finding that the claims brought pursuant
to the federal Fair Housing Act, 42 U.S.C. § 3604, were barred by the applicable statute of
limitations. [ECF #68]. This Court declined to exercise supplemental jurisdiction as to any state
law claims. [ECF #68]. On October 8, 2018, Windjammer Village filed its Motion for Attorney
Fees and Costs pursuant to Federal Rule of Civil Procedure 54. [ECF #72]. Within its Motion,
Windjammer Village also argues that, pursuant to the Federal Housing Act (“FHA”), as the
prevailing party in this case, Windjammer Village is entitled to its attorney’s fees and costs.
Plaintiffs responded to the Motion on October 22, 2018. [ECF #77]. On October 24, 2018,
Defendant submitted a reply, and on November 6, 2018, Plaintiffs submitted a sur reply. [ECF
#79; ECF #81]. The court is in receipt of additional filings related to this Motion. [ECF #82; ECF

#83]. This court now issues the following Order.
Discussion
The parties have been engaged in litigation regarding the rights and access to certain
property owned by Plaintiffs located at 2148 Gamecock Circle for many years in both state and
federal court.1 Plaintiffs Elizabeth Ann Crotty (“Crotty”) and James Orzech (“Orzech”) filed the
present lawsuit against Defendant Windjammer Village pursuant to the FHA, alleging that
Windjammer Village failed to accommodate a reasonable request made by Crotty to park near the
front door of her residence due to her disabilities. [ECF #1, p. 4]. Windjammer Village filed a
motion seeking summary judgment on all claims, arguing as one of its grounds that Plaintiffs’
claims were time-barred. On September 24, 2018, this Court determined that Plaintiffs’ claims
were time-barred pursuant to the applicable statute of limitations and granted summary judgment
in favor of Windjammer Village as to all federal claims. [ECF #68]. This Court also declined to
exercise supplemental jurisdiction as to any alleged state law claims. [ECF #68]. Windjammer
Village now seeks to recover both its costs and attorney’s fees pursuant to Rule 54 and 42 U.S.C.
§ 3613(c), the provision in the FHA governing the recovery of attorney’s fees. Plaintiffs Crotty
and Orzech argue that the motion was not timely filed pursuant to Rule 54 and should therefore
be denied. On October 8, 2018, Windjammer Village filed its Motion for Costs and Attorney’s

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On October 28, 2009, Plaintiffs filed a verified Complaint in the Court of Common Pleas of Horry County,
Civil Action No. 2009-CP-26-10523, seeking to enjoin Defendant from removing the paved driveway that
currently provided access to the mailboxes. This matter was resolved via a final order dated August 3, 2011 and
filed August 5, 2011. On December 11, 2012, Plaintiff Crotty dual-filed a verified Complaint with the U.S.
Department of Housing and Urban Development (“HUD”), as well as the South Carolina Human Affairs
Commission (“SCHAC”), alleging Defendant failed to grant her a reasonable accommodation based upon her
physical disability in violation of the South Carolina Fair Housing Law. This matter was resolved via a Consent
Order of Dismissal.

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Fees. Within its Motion, Windjammer Village indicated that an affidavit detailing its fees and
expenses would be filed as a supplement within five days. [ECF #72, p. 1]. The affidavit was
filed three days later on October 11, 2018, and a supplement to this affidavit was filed several
days later. [ECF #73; ECF #74]. In other words, while the Motion itself was timely filed,
Plaintiffs argue that under a literal reading of the rule, the motion is still untimely because it did
not initially include all the necessarily information required under Rule 54.
Rule 54(d)(1) of the Federal Rules of Civil Procedure pertaining to cost other than
attorney’s fees, provides that, “[u]nless a federal statute, these rules, or a court order provides
otherwise, costs–other than attorney’s fees–should be allowed to the prevailing party.” Rule
54(d)(2) provides that, “[a] claim for attorney’s fees and related nontaxable expenses must be
made by motion” and must be filed no later than fourteen (14) days after the entry of judgment.
The motion must set forth the specific judgment, statute or rule entitling the movant to attorney’s
fees, the amount sought or a fair estimate of the amount sought, and the terms of any agreement
for which the claim was made.2 Rule 6(b)(1) of the Federal Rules of Civil Procedure allows the
court the discretion to extend the time for the filing of a motion if a party failed to act due to
“excusable neglect.” Rule 54 and Rule 6 must be read together. See Tancredi v. Met. Life Ins. Co.,
378 F.3d 220, 227 (2d Cir. 2004).
Federal Rule of Procedure 6(b) provides enlargement of a time period upon a finding of
“excusable neglect.” Courts have defined the standard for showing “excusable neglect” by the party

2

Local Rule 54.03 of the District of South Carolina also provides that the bill of costs shall be filed within the
time period found in Fed. R. Civ. P. 54.

3

seeking an extension of the deadline as requiring both a demonstration of good faith and a
showing of a reasonable basis for the failure to comply with the rule. See Hilton Groups, PLC
v. Branch Banking & Trust Co., No. 2:05-977-DCN, 2007 WL 2022183, at *3 (D.S.C. July 11,
2007) (discussing the late filing of a bill of costs); Gaskin v. BFI Waste Services, LLC, 281 Fed.
Appx. 255, 258, 2008 WL 2415869, at *2 (4th Cir. 2008)(discussing the applicability of Rule 6
to an untimely fee petition). Courts also consider circumstances such as the danger of prejudice
to the other side, the length of the delay, whether the movant acted in good faith, and the reason
for the delay and whether it is control of the movant. Id. Indeed, another court in this district has
previously determined that the failure to file a motion within fourteen days is not an absolute bar
to recovery and considered a motion for fees upon a finding of excusable neglect.3 Id. at *2.
Courts also consider circumstances such as the danger of prejudice to the other side, the length
of the delay, whether the movant acted in good faith, and the reason for the delay and whether
it is control of the movant. Id.
Here, Windjammer Village indicated within its initial motion, filed on October 8, 2018
within the fourteen day deadline, that the affidavit detailing these costs was forthcoming within
the next few days. The affidavit was then filed three days later on October 11, 2018, while an
amended version of costs and fees was filed on October 22, 2018. In response to Plaintiffs’
argument that the motion was not timely filed, counsel for Windjammer Village wrote a letter and

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This Court has considered Plaintiffs’ argument that much like a statute of limitations, the deadline for filing a
motion under Rule 54 should extinguish the claim. Plaintiffs’ point regarding the importance of timely filings is
well-taken. Nonetheless, federal courts have previously held that the fourteen-day deadline found in Rule 54 is
not a fatal jurisdictional deadline. See Tancredi v. Met. Life Ins. Co., 378 F.3d 220, 227 (2d Cir. 2004).

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filed it with this court, explaining that the three-day delay in filing the affidavit was a result of
the effects of Hurricane Florence and the subsequent technological and travel difficulties resulting
from the storm. Plaintiffs question the validity of counsel’s explanation of the ill effects of the
storm, calling into question whether Windjammer Village’s counsel was indeed disadvantaged in
the manner suggested within the letter. This court acknowledges that the storm and resulting
aftermath created difficulties for individuals, including attorneys, attempting to electronically file
documents with the district courts in this state. This court therefore does not find a compelling
reason to question the candor of Defendant’s counsel. A weather-related delay, clearly beyond the
control of the movant, would seem a quintessential example of when the “excusable neglect”
standard would apply. Moreover, the length of the delay in filing the affidavit to accompany the
motion was relatively short. Plaintiffs do not argue that they were somehow prejudiced in the
filing of the affidavit three days after the motion was filed. Importantly, the motion itself was
timely filed, despite the fact that the specific amounts requested by Windjammer Village were not
fully listed and detailed in the motion. Further, Plaintiffs do not explain how a three-day delay
negatively impacted the proceedings, particularly given the fact that Plaintiffs did not appeal the
summary judgment motion. Therefore, even assuming under a literal reading of the rule that the
motion should be considered untimely because it did not contain the information contained in the
affidavit, after reviewing the record and giving due consideration to Plaintiffs’ arguments, this
court finds that Windjammer Village meets the standard under Rule 6(b) of showing “excusable
neglect” in filing the accompanying affidavit three days outside of the fourteen day period
provided for in Rule 54.
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Turning now to substance of the motion, Rule 54(d)(1) provides in pertinent part: “[u]nless
a federal statute, these rules, or a court order provides otherwise, costs–other than attorney’s
fees–should be allowed to the prevailing party. Fed. R. Civ. P. 54(d)(1). Local Rule 54.03
contemplates filing a bill of costs which generally details the items set forth in the relevant
statutes and rules that can be redeemed. 28 U.S.C. §1920 establishes that a judge or clerk of any
court of the United States may tax the following items: (1) fees of the clerk and marshal; (2) fees
of the court reporter; (3) fees and disbursements for printing and witnesses; (4) fees for
exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under
section 1923; and (6) compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
Here, Windjammer Village did not file a separate bill of costs or utilize form AO 133,
which is not expressly required, under Local Rule 54.03.4 Within its Motion, Windjammer Village
did specifically request costs pursuant to Rule 54(d)(1) and provided notice that it was seeking
costs within the applicable time period, fourteen days, provided for under Local Rule 54.03. See
generally Int’l Union of Operating Eng’rs, Local #965 v. S. Crider Constr. & Supply, No. 133425, 2014 WL 2609824, at *4 (C.D. Ill. 2014) (where a court allowed an affidavit of costs to
substitute for the filing of Form AO133, finding that it would not require strict compliance even
though the court’s local rules require parties to use the form); Leadership Council for Met. Open
Communities, Inc. v. Rossi Realty, Inc., 2003 WL 1741324, at * 2 (N.D. Ill. 2003) (explaining that

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Form AO 133, titled Bill of Costs, is available on the court’s website and enumerates the fees that may be
included, as well as provides an explanation of the documentation needed for the requests for costs in each
category enumerated in 28 U.S.C. § 1920.

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if the requirements for Fed. R. Civ. P. 54(d) are met, then the court could construe an affidavit
as sufficient, despite noting that had the prevailing party used Form AO 133, the issues would be
much easier to address). Therefore, despite the fact that Windjammer did not use Form AO133
or file a document entitled a bill of costs detailing its taxable costs, this Court will consider the
substance of Windjammer Village’s request for costs under Rule 54(d)(1).
Rule 54(d)(1) gives rise to a presumption that costs should be awarded to the prevailing
party. Cherry v. Champion Int’l Corp., 186 F.3d 442, 446 (4th Cir. 1999). While a district court
has the discretion to deny an award of costs, it must “articulate some good reason” for its denial.
Id. Factors such as misconduct by the prevailing party, the losing party’s inability to pay,
excessiveness of the costs claims, the limited value of the prevailing party’s victory, or the
closeness of the issues decided may justify the denial of an award of costs. Id. Windjammer
Villages seeks a total of $1,342.99 in costs, as provided for in the Affidavit provided by its
attorney. Attached to the Affidavit is a copy of the client invoices and statements prepared by
Windjammer Village’s counsel reflecting the work performed and cost incurred related to this
lawsuit. Windjammer Village does not provide any other documents or evidence related to the
taxable costs. Some of the costs that appear to have been incurred as “additional charges” on the
client invoice, such as PACER service fees, postage, and process server fees, are not enumerated
as taxable costs under 28 U.S.C. §1920. Other costs, such as copying fees or deposition transcript
costs, may indeed be taxable under 28 U.S.C. §1920.5 None of the expenses have documentation

5

The amount attributable to copying costs provided for in the invoices totals $580.34; while the amount
attributable to the payment for transcripts and media duplication of a deposition was $157.33.

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or receipts beyond Windjammer Village’s own client invoices to support or otherwise clarify the
type of expenditure amount. Nonetheless, after reviewing the record in this case, this court finds
that good reason exists to decline an award of costs to Windjammer Village in this case.
Ms. Crotty suffers from several disabilities and has been determined by the Department
of Veterans Affairs to be 100 percent permanently and totally disabled. [ECF #57-4]. The record
also contains parts of Ms. Crotty’s medical records detailing knee problems and knee surgery, as
well as her statements suggesting Mr. Orzech suffers from congestive heart failure. [ECF #57; ECF
#64-4]. Mr. Orzech and Ms. Crotty, who appear pro se in this case, state that the granting of fees
or costs against them would present a financial hardship for them in their old age. Windjammer
Village does not dispute the Plaintiffs’ financial inability to pay costs. This court has also
considered the fact that this case resulted in a summary judgment dismissal based on the statute
of limitations, as opposed to the granting of any monetary damages to a party or a meritorious
finding in favor of Windjammer Village. Therefore, this Court in its discretion, finds good reason
for departing from the presumption in favor of awarding costs and declines to award taxable costs
to Windjammer Village.
With respect to attorney’s fees, the FHA provides for the recovery of attorney’s fees and
costs by the prevailing party. 42 U.S.C. § 3613(c). Under section 3613(c)(2) of the FHA, a district
court may award attorney’s fees upon a finding that the plaintiff’s action was “frivolous,
unreasonable, or without foundation, even though not brought in subjective bad faith.” Bryant
Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 606 (4th Cir 1997) (citing Christiansburg
Garment Co. v. EEOC, 434 U.S. 412 (1978)). An award of attorney’s fees is also appropriate if
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a plaintiff brought the case in subjective bad faith. Christiansburg Garment Co., 434 U.S. at 419.
A court’s determination to award attorney’s fees is discretionary. Brooks v. Center Park Assoc.,
33 F.3d 585, 587 (6th Cir. 1994). Windjammer Village argues that Plaintiffs’ actions meet the
standard announced under Christiansburg to award attorney’s fees for several reasons.
First, Windjammer Village argues that the decision to file this lawsuit after a state court
order seemingly prohibiting the relief sought is baseless and unreasonable. Windjammer Village
thus argues that Plaintiffs’ actions were frivolous, unreasonable and/or without foundation because
they brought this current lawsuit seeking relief that was previously prohibited in a state court order
and which they knew this Court could not grant. Second, Windjammer Village argues Plaintiffs
brought substantially the same claims as they brought in a lawsuit filed with the SCHAC;
therefore, bringing them in this court a second time was unreasonable. Finally, Windjammer
Village argues that Plaintiffs were unreasonable in bringing these claims in federal court based
upon claims that they should have known had expired four years prior to the commencement of
the lawsuit. As support, Windjammer Village points out that this Court found that Plaintiffs’
claims were barred by the applicable statute of limitations; therefore, it was unreasonable for
Plaintiffs to have brought these claims. Windjammer’s counsel has submitted an affidavit of
attorney’s fees and costs, as well as an amended affidavit, totaling the amount of costs at
$1,342.99 and attorney’s fees in the amount of $41,023.82. Plaintiffs respond as indicated above,
that due at least in part to Plaintiff Crotty’s disability, they do not have the financial ability to pay
the fees Windjammer Village seeks. Further, they argue any such judgment would create a
personal financial disaster for them.
9

A review of the pleadings indeed reveals numerous lawsuits and numerous filings over the
years all focused around the issue of whether Plaintiffs should be permitted to park in a specified
place in their homeowner community. However, a review of these pleadings do not necessarily
indicate that Plaintiffs brought these claims in bad faith or as a result of frivolous filings. In the
present case, Plaintiffs are pro se litigants, alleging violations under both the FHA and the state
fair housing laws. The complaint appeared to state plausible claims for relief.

In ultimately

granting summary judgment, the Court considered arguments by Plaintiffs that included reasons
as to why the statute of limitations should not apply, although ultimately this Court determined
that the claims are indeed time-barred. This court did not make a specific finding that Plaintiffs
gave a false recitation of the facts or others presented claims that they knew were baseless. See
generally Sassower v. Field, 973 F.2d 75, 79 (2d Cir. 1992). Plaintiffs’ briefing over the course
of this lawsuit suggests that they believed that Defendants discriminated against them. Indeed, this
Court granted summary judgment based upon a statue of limitations defense for claims under the
FHA that do not appear to have been previously alleged in their prior lawsuits.6 Finally, this Court
is also mindful of the risk associated with awarding fees on the potential chilling effect that might
occur with respect to pro se litigants in bringing civil rights lawsuits. Based on these
considerations, this Court exercises its discretion and denies the request for attorney’s fees.

6

The State Court order attached to Defendant’s motion for summary judgment indicates that Plaintiffs sought
injunctive relief and that they asserted they had certain easement rights. That order notes that Plaintiffs had not
pled discriminatory enforcement of a particular rule or regulation. [ECF #47-10]. There is also no indication that
Plaintiffs argued violations of the FHA in the SCHAC lawsuit. [ECF #47-12]. Defendant notes in its summary
judgment motion that Plaintiff’s claims in the prior lawsuits were based in contract and property rights. [ECF
#47-1, p. 20].

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Conclusion
The Court has thoroughly reviewed Defendant’s Motion for Attorney Fees [ECF #72], the
briefing filed in response, and the accompanying arguments by both parties. For the reasons
provided above, the Motion is DENIED.
IT IS SO ORDERED.
Florence, South Carolina
April 29, 2019

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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