Whiting v. City Of Athens et al

Filing 44

ORDER granting 37 Motion for Attorney Fees; denying 40 Motion to Strike. Counsel for Plaintiff is DIRECTED to pay attorney fees in the amount of $21,846.60 to Defendants on or before January 20, 2025. Signed by District Judge Travis R McDonough on 9/24/2024. (DCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
GLENN WHITING,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF ATHENS and STEVE SHERLIN )
)
Defendants.
)

Case No. 3:23-cv-221
Judge Travis R. McDonough
Magistrate Judge Debra C. Poplin

ORDER

Before the Court is Defendants City of Athens (“the City”) and Steve Sherlin’s joint
motion for attorney fees (Doc. 37). For the following reasons, the Court will GRANT the
motion (id.).
I.

BACKGROUND
On March 21, 2023, Plaintiff Glenn Whiting attended the City’s monthly public council

meeting. (Doc. 1, at 3.) During the public-comment portion of the meeting, Plaintiff addressed
the council. (Id.) According to Plaintiff’s complaint, he spoke about several topics, including
“actions that had been promised by three [c]ouncil members prior to their recent election” to
“settle all pending litigation by Whiting against the City.” (Id.) When Plaintiff asserted that
many of the promised actions had not been taken and that “the City had refused offers to settle
made by Whiting,” Defendant Steve Sherlin, the City Mayor, responded that “[t]here’s more than
one side to the story.” (Id.)

Shortly after the meeting, Sherlin also uploaded a Facebook post1 discussing settlement
negotiations between Plaintiff and the City. (Id.) The post accused Plaintiff of “twisting the
truth” about the course of settlement discussions between the parties. (Id. at 3–4.) Sherlin’s
Facebook post stated:
Both times we were advised that after repeated attempts to settle with Mr.
Whiting he rejected terms and sought excessive amounts of money. . . . Time and
again we have tried to find a way to settle and yet Mr. Whiting persists by making
new lawsuits against the City. . . . We have tried he has denied and continues to
twist the truth about whether or not we have made attempts to settle his lawsuits.
We can only do what legal Counsel advises us to do and nothing more. . . . Mr.
Whiting’s change of position on settlement negotiations are baffling to say the
least. We have tried. I and the entire council have been completely transparent.
We have made many positive changes that Mr. Whitng [sic] has pushed for, yet
he is never satisfied, he now turns his displeasure on the new Council and on me,
who all have tried to find resolution to these unending demands and lawsuits.2
(Id. at 4.)
On April 18, 2023, Plaintiff attended another of the City Council’s regular public
meetings and again discussed ongoing litigation against the City during the meeting. (Id.) In
response, Sherlin stated that “Whiting had offered to settle [the pending litigation against the
City] for $0, then $10,000.” (Id.) Sherlin also disclosed that “Whiting reneged on [the City’s
offer to settle] and [instead] demanded $375,000.” (Id. at 4–5.) But, according to Plaintiff, he
“had never offered to settle any lawsuit with the City for $10,000, or any amount near $10,000.”

1

Plaintiff generally references “other social media sites” in his complaint. (Doc. 1, at 2 (“Upon
information and belief, defendant Sherlin made false statements about the plaintiff to numerous
third parties, including posting said statements online on Facebook and other social media sites,
with knowledge that said statements were false.”).) However, Plaintiff does not provide any
further description of any social-media site or publication other than Sherlin’s Facebook post.

2

This excerpt is produced exactly as it appears in Plaintiff’s complaint; all ellipses were included
in Plaintiff’s recitation. (Doc. 1, at 4.) In their motion to dismiss, Defendants advise the Court
that “the quotation [] is incomplete and omits roughly half of the comment at issue.” (Doc. 14, at
6 n.2.)
2

(Id. at 5.) Though he admits that “the City did offer to settle one minor public records lawsuit
for costs,” an agreement was never reached. (Id.)
On June 22, 2023, Plaintiff filed suit, asserting claims for First Amendment retaliation
and state-law defamation against Sherlin and the City. 3 (Id. at 16–19.) By that time, Plaintiff
had filed two additional cases, one of which has since been dismissed for failure to state a claim
(See Doc. 34 in Case No. 3:23-cv-220) and the other of which was dismissed at the summaryjudgment stage. 4 (See Docs. 1, 211 in Case No. 3:23-cv-2.) On August 1, 2023, Defendants
jointly moved to dismiss all claims against them in this case. (Doc. 13.) The Court granted the
motion and dismissed the case with prejudice, finding that Plaintiff failed to state a claim against
either Defendant. (Doc. 31.) Defendants subsequently moved for attorney fees (Doc. 37)
pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1927, and Tennessee Code Annotated § 29-20-113.
Plaintiff responded in opposition over two months later and moved to strike a portion of the
request. (Docs. 39, 40.) The motions are ripe for review.
II.

ANALYSIS
A.

Timeliness

As a preliminary matter, the Court notes that Plaintiff did not timely respond to
Defendants’ motions for attorney fees. The Court entered a memorandum opinion and judgment
order closing this case on November 7, 2023. (Docs. 31, 32.) Plaintiff did not file a notice of
appeal or seek an extension by which to file a notice of appeal pursuant to 28 U.S.C. § 2107(c).
3

Plaintiff also brought a “cause of action” for injunctive and declaratory relief. (Doc. 1, at 19–
20.) Because this is a form of relief rather than a separate cause of action, the Court does not
include it in this list.
4

According to Defendants, Plaintiff has filed nine total lawsuits against the City or City
employees since 2020. (Doc. 14, at 1–2.) Plaintiff appealed the Court’s dismissal of Case No.
3:23-cv-220, and the Sixth Circuit affirmed the Court’s decision. (Doc. 54 in Case No. 3:23-cv220.)
3

Defendants timely moved for an award of attorney fees and costs on November 21, 2023. (Docs.
35–38.) Plaintiff did not file a response to the motion until over two months later, on January 31,
2024. (Doc. 39.) This is more than a month and a half beyond the required response deadline.
See E.D. Tenn. L. R. 7.1(a) (noting that a party has fourteen days to respond to a non-dispositive
motion). This significant tardiness allows the Court to disregard Plaintiff’s response and award
the requested fees. See E.D. Tenn. L. R. 7.2 (“Failure to respond to a motion may be deemed a
waiver of any opposition to the relief sought.”); cf. Schaefer v. Walker Bros. Enterprises, No. 10
CV 6366, 2015 WL 1959892, at *2 (N.D. Ill. Apr. 29, 2015) (finding that the defendant waived
the opportunity to recover costs by filing a bill of costs after the time limit imposed by local
rules).
B.

42 U.S.C. § 1988

Defendants are also entitled to the requested fees on the merits. They first argue fees are
due pursuant to 42 U.S.C. § 1988. (Doc. 38, at 2.) The Court agrees.
Pursuant to 42 U.S.C. § 1988, “in any action to enforce a provision of” § 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). Recovery under this statute is the default for a prevailing § 1983
plaintiff; the United States Supreme Court has directed that a “prevailing plaintiff should
ordinarily recover an attorney’s fees unless special circumstances would render such an award
unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal quotations and citations
omitted). However, a prevailing party can be either a defendant or a plaintiff. Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 420 (1978) (holding that § 1988 authorizes a fee award to
a prevailing defendant, who should also be protected “from burdensome litigation having no
legal or factual basis”). Under § 1988, “[a] prevailing defendant should only recover upon a

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finding by the district court that the plaintiff’s action was frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith.” Wolfe v. Perry, 412 F.3d 707, 720
(6th Cir. 2005) (quoting Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994)).
In adjudicating a defendant’s request for attorney fees pursuant to 42 U.S.C. § 1988, the
Court should determine whether: (1) the defendant is a “prevailing party”; (2) the plaintiff’s
action was frivolous, unreasonable, or without foundation; (3) the compensation sought is
reasonable, as assessed by the lodestar method; and (4) there are any exceptional considerations
requiring an upward or downward adjustment. See Hensley, 461 U.S. at 433–34; Wolfe, 412
F.3d 707 at 720. The lodestar method requires a court to multiply the number of hours
reasonably expended by the applicable hourly market rate for legal services to find an objective
basis for a lawyer’s services. Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). There is a strong
presumption that the lodestar figure is reasonable, but a court should scrutinize the amount to
ensure it does not produce windfalls to attorneys. Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 554 (2010); Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995).
Here, Defendants are entitled to attorney fees pursuant to 42 U.S.C. § 1988. They filed a
motion to dismiss all claims, which were brought pursuant to 42 U.S.C. § 1983,5 for failure to
state a claim. (Doc. 13.) The Court granted the motion. (Docs. 31, 32.) This makes Defendants
the “prevailing party” in this suit. See Terry v. Tyson Farms, Inc., No. 4:08-cv-3, 2008 WL
11417831, at *1 (E.D. Tenn. Nov. 25, 2008) (noting that a defendant is a prevailing party when

5

Plaintiff also brought state-law defamation claims in this action, and 42 U.S.C. § 1988 does not
allow for the recovery of attorney fees related to state-law claims. Ash v. Bezotte, No. 10-11875,
2013 WL 4777176, at *3 (E.D. Mich. Sept. 5, 2013) (“Thus, no matter how frivolous,
unreasonable or groundless, Defendants cannot recover their attorney’s fees related to Plaintiff’s
state law claims.”). Defendants acknowledge this in their motion for attorney fees and represent
that “the fees sought [for the 42 U.S.C. § 1983 claims] would have been necessary regardless of
whether the state law claims were included.” (Doc. 38, at 2 n.2).
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its motion to dismiss is granted and judgment is entered in its favor). For reasons discussed
below, Plaintiff’s action was also frivolous and without foundation. See infra Section II.D.
The fee amount Defendants request is reasonable. Defendants ask for $21,846.60 in
attorney fees, calculated using the lodestar method. (Doc. 38, at 12.) In support of the request,
attorneys for Defendants claim hourly rates of $229.00, which they attest is “actually below the
prevailing rates in the community for complex civil rights litigation.” (Id.) According to their
calculations, Counsel Dan R. Pilkington billed 31.9 hours, and Counsel Brian R. Bibb billed 63.5
hours. (Id.) Defendants do not seek any enhancement to the lodestar amount. (Id.) Considering
the relatively low hourly rate and that litigation of this matter implicated substantial motions
practice, service issues, and complex constitutional claims, the Court finds the requested amount
of $21,846.60 is eminently reasonable.
Because Defendants prevailed in Plaintiff’s frivolous § 1983 action and the fees they
request are reasonable, they are entitled to recover that amount pursuant to 42 U.S.C. § 1988.
C.

Tenn. Code Ann. § 29-20-113

Even if Defendants were not due attorney fees pursuant to 42 U.S.C. § 1988, Defendant
Sherlin would be entitled to them under Tennessee Code Annotated § 29-20-113, which
authorizes a court to award reasonable attorney fees to Tennessee local government employees
under certain circumstances. (Doc. 38, at 8.)
“Federal Courts must generally apply state law regarding attorney fees to a state law
claim pendent to a federal claim.” Williams v. Shelby Cnty. Sch. Sys., No.
217CV02284TLPCGC, 2019 WL 490354, at *7 (W.D. Tenn. Feb. 7, 2019), aff’d, No. 19-5238,
2020 WL 1190433 (6th Cir. Mar. 12, 2020) (quoting Shimman v. Int’l Union of Operating
Engineers, Local 18, 744 F.2d 1226, 1237 n.17 (6th Cir. 1984)). Here, Plaintiff filed a state-law

6

defamation claim in addition to his First Amendment retaliation claims against Defendant
Sherlin. (Doc. 1, at 16–19.) The Court will consider how § 29-20-113 applies to Plaintiff’s state
law claims against Defendant Sherlin.6
To be entitled to attorney fees under Tennessee Code Annotated § 29-20-113, a
Tennessee local government employee must prevail on his individual-capacity claim. Tenn.
Code Ann. § 29-20-113(a). The statute defines “prevailing party” broadly: “a government
employee is deemed a prevailing party . . . so long as he asserts in his answer, at least forty-five
days before the dismissal, that he was not acting in his individual capacity.” Ogle v. Jones, No.
3:20-cv-293, 2024 WL 2224328, at *3 (E.D. Tenn. May 16, 2024) (citing § 29-20-113(b)(2)).
Thus, the statute imposes three procedural requirements before a government employee
defendant can be characterized as a prevailing party under the statute: (1) the plaintiff’s
individual-capacity claim is dismissed; (2) the government employee’s answer or responsive
pleading asserts that he was not acting in his individual capacity as to the claims alleged; and (3)
the dismissal occurs at least forty-five days after the government employee filed an answer or
responsive pleading. Id.
Defendant Sherlin is entitled to attorney fees pursuant to Tennessee Code Annotated §
29-20-113(a) because all three procedural elements are met. First, Sherlin prevailed. The Court
dismissed all claims against him when it granted Sherlin’s motion to dismiss. (Docs. 31–32); see
Aylor v. Carr, No. M201801836COAR3CV, 2019 WL 2745625, at *4–5 (Tenn. Ct. App. July 1,
2019) (finding that the defendants prevailed for the purposes of § 29-20-113 when the plaintiff’s

6

The Court will not address Plaintiff’s arguments regarding the constitutionality of § 29-20-113.
As stated in Section II.A, Plaintiff waived his opportunity to oppose Defendant’s motion for
attorney’s fees. Cf. Williams, 2019 WL 490354 at *8 (applying § 29-20-113 to state law claims
and refusing to consider the statute’s constitutionality after the plaintiffs waived their opportunity
to challenge the statute on these grounds).
7

suit was dismissed). Sherlin also meets the second requirement—he warned in his motion to
dismiss that he was not properly joined to the action in his individual capacity. (Doc. 14, at 21);
see Aylor, 2019 WL 2745625 at *5 (holding that a motion to dismiss is a “responsive pleading”
under § 29-20-113(b)(2)). The Court dismissed Plaintiff’s claims against Sherlin more than
forty-five days after Sherlin filed his motion to dismiss, so the third requirement is also met.
Accordingly, Sherlin, as a Tennessee government employee, is entitled to attorney fees and costs
pursuant to Tennessee Code Annotated § 29-20-113(a).
D.

28 U.S.C. § 1927

Finally, even if Defendants could not recover attorney fees pursuant to 42 U.S.C. § 1988
or, for Defendant Sherlin, pursuant to Tennessee Code Annotated § 29-20-113(a), they are
entitled to them under 28 U.S.C. § 1927.
28 U.S.C. § 1927 authorizes a district court to award attorney fees as a sanction against a
lawyer for “unreasonably and vexatiously” multiplying the proceedings in any case. To award
fees pursuant to the statute, the court must find that counsel’s conduct “objectively falls short of
the obligations owed by a member of the bar to the court and which, as a result, causes additional
expense to the opposing party.” Milner v. Biggs, No. 13–3486, 2014 WL 1910550, at *3 (6th
Cir. May 13, 2014) (quoting Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465
F.3d 642, 646 (6th Cir.2006)). An award of fees pursuant to 28 U.S.C. § 1927 requires a
showing of “more than negligence or incompetence” but “less than subjective bad faith.” Id.
(quoting Hall v. Liberty Life Assurance. Co. of Boston, 595 F.3d 270, 276 (6th Cir. 2010)). An
attorney’s conduct is sanctionable under the statute “when [he] intentionally abuses the judicial
process or knowingly disregards the risk that [his] actions will needlessly multiply proceedings,
or when he knows or reasonably should know that a claim pursued is frivolous[.]” Jones v.

8

Hamilton Cnty., Ohio, No. 23-3002, 2023 WL 7391704, at *3 (6th Cir. Nov. 8, 2023), cert.
denied sub nom. Jones v. McKeague, 144 S. Ct. 1098 (2024) (internal quotations and citations
omitted). The purpose of awarding fees pursuant to this statute is to “deter and punish those who
abuse the judicial process.” Dean’s Cards, LLC v. Perlstein, No. 1:13-cv-912, 2014 WL
3793575, at *2 (S.D. Ohio July 31, 2014). An attorney subject to sanctions under 28 U.S.C. §
1927 is “required to personally satisfy the excess costs attributable to his misconduct.” Red
Carpet, 465 F.3d at 646. Additionally, “Section 1927 authorizes a court to sanction an attorney
from the point in time when the attorney’s pursuit of . . . claims became unreasonable and
vexatious.” Williams, 2019 WL 490354 at *4 (quoting Carter v. Hickory Healthcare Inc., No.
5:14CV2691, 2017 WL 1711043, at *2 (N.D. Ohio May 3, 2017) (internal quotations omitted).
Plaintiff’s counsel’s actions in this case warrant sanctions. As the Court found in its
order granting Defendants’ motion to dismiss, Defendant Sherlin is immune from liability
because of his legislative role. (Doc. 31, at 14–15, 17–20, 25–27.) Plaintiff’s counsel
undoubtedly knew this. In fact, unlike many cases under § 1927, counsel’s own position,
reduced to writing, establishes as much. Plaintiff conceded in his response to the motion to
dismiss that “all assertions of governmental immunity in the instant case should be granted and
acknowledged.” (Doc. 19, at 5.) Plaintiff’s counsel knew or should have known the claims
against Sherlin were frivolous, and his decision to proceed is sanctionable. See Jones, 2023 WL
7391704 at *3 (affirming § 1927 sanctions when plaintiff filed suit after the plaintiff’s counsel
clearly knew of the defendants’ immunity).
Plaintiff’s federal claim against Defendant City of Athens was similarly frivolous. The
statements undergirding his First Amendment retaliation claim against the City were patently de
minimis; the at-issue comments boil down to disagreement about the course of settlement

9

negotiations between Plaintiff and the City. (Doc. 31, at 11–12.) Such an inconsequential
squabble is not actionable, and Plaintiff’s counsel had reason to know this when filing suit.7 The
case Plaintiff’s counsel cites in his response to Defendants’ motion to dismiss provides ample
description of a de minimis adverse action in this context. See (Doc. 19, at 8); Wurzelbacher v.
Jones-Kelley, 675 F.3d 580, 583–85 (6th Cir. 2012) (describing “inconsequential” adverse
actions that result in “de minimis injury”). Knowing this yet plunging ahead in litigation
anyway, Plaintiff’s counsel unreasonably multiplied proceedings. See Dubuc v. Green Oak
Twp., 482 F. App’x 128, 129–30, 134 (6th Cir. 2012) (finding that pursuing a claim without “any
basis in fact” unreasonably multiplied proceedings). Sanctions are warranted.8 Counsel for
7

Indeed, the Court noted in its opinion granting Defendants’ motion to dismiss that requiring a
public official “to sit silent” in the face of statements like Whiting’s “would transform First
Amendment protections into a requirement that a public servant with a difference of opinion on a
matter of public interest refrain from expressing that opinion.” (Doc. 31, at 10.) It decried such
a result: “The First Amendment encourages public debate; it does not set traps for the engaged
public official.” (Id.)
8

Plaintiff’s counsel should be familiar with 28 U.S.C. § 1927 and the behavior it punishes. In
2012, a federal district judge in the United States District Court for the Western District of
Tennessee sanctioned him under the same statute. Liberty Legal Found. v. Nat’l Democratic
Party of the USA, Inc., No. 12-2143, 2012 WL 3683492, at *1, *6 (W.D. Tenn. Aug. 24, 2012).
Plaintiff moved to strike Defendants’ motion and memorandum in support of the motion for
attorney fees. (Doc. 40, at 1.) In the motion to strike, Plaintiff seems to take issue with
Defendants’ reference to his past misconduct. (See Doc. 40.) However, Plaintiff fails to clearly
reference Liberty Legal Foundation or Pelley v. Perkinson, a case in Tennessee state court in
which Plaintiff’s counsel was sanctioned. No. 2022-cv-298 (McMinn Cnty. Cir. Ct. filed Aug.
18, 2023); (see Docs. 38-1, 40). Plaintiff “requests that this Court’s order include a statement
that the Court reviewed and/or relied upon said State Court order in ruling upon this or any other
motion in this matter.” (Doc. 40, at 3.) Presumably, this refers to Pelley. Plaintiff asserts that it
is “impermissible for a trial judge to consider facts outside the record of the case over which he
presides.” (Doc. 40, at 1.) This is, of course, inaccurate. See, e.g., Plaintiff v. City of Athens, et
al., No. 23-6082, 2024 WL 3537651, at *3 (6th Cir. July 25, 2024) (noting that “the Supreme
Court has explained that the opinions held by judges as a result of what they learned in earlier
proceedings do not render them personally biased”) (citation and internal quotation marks
omitted); Coney v. Smith, 738 F.2d 1199, 1199–1200 (11th Cir. 1984) (taking judicial notice of
relevant state court proceedings); cf. Tilmon-Jones v. Boladian, 581 F.App’x 493, 496–97 (6th
Cir. 2014) (noting that other courts sanctioned plaintiff and her counsel for past misconduct

10

Plaintiff must personally satisfy the attorney fees due. 28 U.S.C.A. § 1927; see Basch v. Knoll,
Inc., No. 1:13-cv-76, 2015 WL 5009355, at *2 (W.D. Mich. Aug. 20, 2015) (noting that an
attorney sanctioned pursuant to § 1927 “may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct”).9
III.

CONCLUSION
For the aforementioned reasons, Defendants are entitled to the requested attorney fees.

Therefore, their motion for attorney fees is GRANTED (Doc. 37). Counsel for Plaintiff is
DIRECTED to pay attorney fees in the amount of $21,846.60 to Defendants on or before
January 20, 2025. Plaintiff’s motion to strike portions of the motion for attorney fees (Doc. 40)
is DENIED.
SO ORDERED.

/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE

before evaluating the district court’s sanctions award). The fact that Plaintiff’s counsel has faced
sanctions in the past is relevant to the present § 1927 analysis considering whether his actions in
this case were pursued in bad faith and how to deter future violations. See Tilmon-Jones, 581
F.App’x at 498 (stating that “the goal of 28 U.S.C. § 1927 not to make a party whole, but to deter
and punish”). The Court therefore DENIES Plaintiff’s motion to strike (Doc. 40).
9

This order deals exclusively with Defendants’ request for attorney fees. It does not relate to or
decide any other issues the Court may raise.
11