Lilly v. City of Clarksville, Tennessee et al

Filing 75

REPORT AND RECOMMENDATION. Signed by Magistrate Judge Joe Brown on 8/9/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(la)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARSHA LILLY,
Plaintiff
v.
CITY OF CLARKSVILLE, et al.,
Defendants
TO:

)
)
)
)
)
)
)
)
)

No. 3:10-1178
Judge Campbell/Brown
Jury Demand

THE HONORABLE TODD J. CAMPBELL
REPORT AND RECOMMENDATION
For

the

reasons

stated

below

the

Magistrate

Judge

recommends that the pending motion for attorneys’ fees and costs
(Docket Entry 62), which was referred to the undersigned for a
report and recommendation (Docket Entry 67), be granted in part and
denied in part. Specifically, the Magistrate Judge recommends that
costs, as requested by the Defendants be allowed and the request
for attorneys’ fees, which includes expert witness fees, be denied.
BACKGROUND
The Plaintiff filed her complaint on December 13, 2010,
against the City of Clarksville, the Clarksville Chief of Police Al
Ansley, and Police Officer Phil Ashby. The 12-page complaint
alleged a wide ranging list of complaints against the City of
Clarksville and its police department involving her operation of
the 808 Sports Bar and Grill and interfering with her employment
with the military police at Fort Campbell, Kentucky. The complaint
itself is somewhat long on conclusions and somewhat short on

specific

dates,

such

as

when

various

activities

took

place.

However, it does not appear that the Defendants ever filed a motion
for a more specific complaint.
The case was put under a scheduling order on February 7,
2011

(Docket

Entry

13).

The

scheduling

order

summarized

Plaintiff’s case as follows:
Plaintiff Marsha Lilly was an owner of a sports
bar known in the community as ‘808 Sports Bar and Grille’
located in Clarksville, Tennessee. Plaintiff’s business
sold food and beverages to the general public at large
and was duly licensed to sell alcoholic beverages to the
public at large. Throughout Plaintiff’s operation of ‘808
Sports Bar and Grille’ she was subjected to unlawful
harassment and intimidation at the hands of the City of
Clarksville, by and through its police department and the
individual Defendants, City of Clarksville, Tennessee; Al
Ansley, Chief of Police for the City of Clarksville,
Tennessee; and Phil Ashby, Police Officer of the City of
Clarksville, Tennessee, (Defendants). In particular, the
Defendants have targeted Plaintiff and her establishment
for closure because of Plaintiff’s race and the race of
her establishment’s clientele.
Defendants, through its police department, have
engaged in harassing conduct such as parking patrol cars
directly in front of Plaintiff’s establishment in an
effort

to

deter

the

public

from

patronizing

her

establishment. On more than one occasion, Plaintiff has
confronted officers parked in front of her establishment
about why they were there only to be told by the officers
that they had ‘no reason’ to be there. Defendants have
2

the

also set up ‘roadblocks’ on each end of the street that
provides ingress and egress to Plaintiff’s establishment
thereby deterring, and in some instances preventing, the
general public from patronizing her establishment.
Defendants, including Defendant Ashby, have
also made false statements and accusations in the print
and

broadcast

media

about

Plaintiff

and

her

establishment. Defendants, including Defendant Ashby,
have provided false information to the media that persons
have been ‘shot’ and killed at Plaintiff’s establishment
and that her establishment was involved in gang and drug
related activities in the community. Such statements were
false, defamatory, stigmatizing and designed to deter the
public from patronizing her establishment.
Plaintiff submits that Defendants have used
their positions of authority under state law to institute
an official policy and/or practice of harassment and
intimidation against citizens of the City of Clarksville
in a concerted effort to preclude the Plaintiff’s efforts
to run a lawful business. As a direct result, Plaintiff
was forced to close her business.
Further, Defendants, including Ashby, have made
false slanderous and defamatory statements to the public
accusing Plaintiff of allowing illegal activity to be
conducted in her business as well as accusing her of
being personally involved in the same.
Defendants have performed the actions alleged
herein described with personal animosity, malice, illwill towards the Plaintiff because of her race which is
unrelated to any legitimate governmental objective in a
concerted effort to preclude the Plaintiff from running
a lawful business in the City of Clarksville. As such,
3

Defendants have violated Plaintiff’s right to equal
protection under the law and her rights under 42 U.S.C.
Section 1981.
In or about August of 2009 Plaintiff applied
for and received, on a probationary period, the job of
Supervisory Criminal Investigator for the Military Police
Detachment, Fort Campbell. Her duties included serving as
a senior investigator and case agent for sexual and child
assault investigations. Criminal Investigators for the
Military Police Department at Fort Campbell work in
conjunction

with

the

Clarksville

Police

Department

investigating sexual assault and child abuse allegations
in

the

Clarksville

employment,
contacted

area.

Defendants
Plaintiff’s

At

and

some

point

their

employer

and

during

her

employees/agents
made

false

and

defamatory statements about Plaintiff, including alleging
that Plaintiff was engaged in drug and gang related
activities.

Further,

employees/agents

told

Defendants
Plaintiff’s

and

their

employer,

Fort

Campbell, that they would refuse to share investigative
material as long as Plaintiff worked for Fort Campbell
due to her drug and gang involvement. Plaintiff was
placed on administrative leave on or about December 17,
2009. The statements by the Defendants were designed and
intended to cause the termination of Plaintiff from Fort
Campbell. As a result of these false and defamatory
statements, Plaintiff was terminated from Fort Campbell
on January 4, 2010.
As

a

result

of

the

Defendants’

action,

Plaintiffs’ constitutional rights have been violated and
she has sustained damages.
Defendants’ theory was:

4

a.

City of Clarksville. The Plaintiff has

suffered no constitutional deprivation and, as such, any
claims

against

the

City

of

Clarksville

must

fail.

Assuming that the Plaintiff has suffered a constitutional
deprivation, which these Defendants deny, nothing in the
policies or procedures of the City of Clarksville or
Clarksville Police Department resulted in any type of
violation of any constitutional rights of the Plaintiff,
even if the Plaintiff has articulated any constitutional
violations of any other Defendants, which the City of
Clarksville denies. To the extent the Plaintiff alleges
the City of Clarksville failed to supervise or discipline
the individual Defendants in this action, the City of
Clarksville’s supervision and discipline were adequate
and appropriate at all times pertinent. Further, even if
the City of Clarksville’s supervision and/or discipline
of the individual Defendants was in any way lacking,
which these Defendants deny, the City of Clarksville was
never made aware of any constitutional deprivations as a
result of the inadequacy or supervision or discipline
prior to the incidents giving rise to this action. The
City did not have a policy, practice or custom of
harassment or intimidation. The City cannot be liable
under a respondent superior theory.
The

Defendant

City

of

Clarksville

is

a

governmental entity as defined by the Governmental Tort
Liability Act (GTLA) set forth at T.C.A. § 29-20-101, et
seq. The Defendant is entitled to rely on any and all
immunities, defenses, and jurisdictional bars applicable
to governmental entities as set forth in the GTLA.
b.

Chief Al Ansley. The Plaintiff has not

articulated any factual allegations against Defendant Al
Ansley except in conjunction with allegations against the
5

City

or

more

specifically

the

Clarksville

Police

Department. The Plaintiff does not allege any individual
claims against Chief Ansley and has not alleged any
actions

by

Ansley

separate

or

distinct

from

her

allegations against the City of Clarksville.
c.

Lieutenant

Phil

Ashby.

At

all

times

relevant herein, Ashby acted objectively reasonable in
his interactions with the Plaintiff, her employer at Fort
Campbell, and her employees and patrons of 808 Sports Bar
&

Grille.

Even

deprivation

of

if

Ashby’s

the

actions

did

constitutional

represent

rights

of

a

the

Plaintiff, which these Defendants deny, Ashby is entitled
to qualified immunity as that conduct was not prohibited
by clearly established law such that it would be clear to
a reasonable officer that such conduct was, in fact,
prohibited by law.
d.

Additional

Allegations.

None

of

the

alleged statements of Defendants constituted defamation.
None

of

Defendants

the
did

statements
not

harmed

coerce

Marsha

Plaintiff’s

Lilly.

The

employer

to

terminate her employment.
None of the alleged conduct set out in the
Complaint of Plaintiff Marsha Lilly was motivated by the
race or color of Marshal Lilly or her patrons at 808
Sports Bar & Grille. None of the alleged conduct in the
complaint of Marsha Lilly was damaging to her. None of
the alleged conduct in the complaint of Marsha Lilly was
damaging to her business professions.
Any conduct on the part of any person employed
by

or

acting

as

a

representative

of

the

City

of

Clarksville, in its interaction with the Plaintiff at the
dates and times stated in her Complaint, constitute
action taken appropriately based upon the Defendants’
6

police duties as stated herein, and the Defendants deny
that any conduct on the part of any person employed by or
acting as a representative of the City of Clarksville in
its interaction with the Plaintiff constituted action
taken in any respect toward or against the Plaintiff
based upon her race or color or in violation of 42 U.S.C.
§§ 1981, 1983, Tennessee Code Annotated § 4-21-701, et
seq., or any other causes of actions alleged by the
Plaintiff.
Marsha Lilly has failed to timely file all or
part of her claim as required by statute and to that
extent her claim is barred.
Initial disclosures were scheduled to be made by March 9,
2011, and written discovery was to be completed before June 30,
2011. Expert witnesses were to be disclosed by the Plaintiff on or
before July 29, 2011, with defense experts disclosed on or before
August 29, 2011. The depositions of all fact and expert witnesses
were

scheduled

to

be

completed

by

October

28,

2011,

with

dispositive motions due February 15, 2012. The case was set for a
jury trial on July 17, 2012 (Docket Entry 15).
As far as the Magistrate Judge was concerned the case
proceeded

normally

and

at

a

telephone

conference

with

the

Magistrate Judge on June 8, 2011, the parties advised that they did
not

need

any

changes

to

the

scheduling

order

and

that

the

Plaintiff’s deposition was set for July 29, 2011 (Docket Entry 15).
Subsequently, the Plaintiff did move for an extension of the
deadlines for depositions of fact and expert witnesses from October
28, 2011, to December 28, 2011 (Docket Entry 16). The Magistrate
7

Judge granted an extension of discovery to December 22, 2011
(Docket Entry 17).
Subsequently, there was a motion in limine to prevent the
use of an expert by Plaintiff due to an inadequate Rule 26(2)(b)
(Docket Entry 18), which the Magistrate Judge granted after the
Plaintiff failed to file any response in opposition (Docket Entry
19). In the order granting the motion the Magistrate Judge found
that the Plaintiff’s expert disclosure was woefully insufficient.
There was no further activity before the Magistrate Judge
and the Defendants filed a motion for summary judgment on February
15, 2012, which was the scheduled deadline. The Defendants received
permission to file briefs in excess of the normal page limitations.
The City of Clarksville brief was 50 pages in length and the brief
for Defendants Ansley and Ashby (Docket Entry 24) was 62 pages. The
Plaintiff had three motions to extend the deadline for responding
and filed a 26-page response to the City of Clarksville’s motion
for summary judgment (Docket Entry 35), and a 29-page response to
the motion by Ansley and Ashby (Docket Entry 42). In both briefs
the Plaintiff conceded certain issues and failed to make any
argument concerning others as pointed out by the District Judge in
granting the motions for summary judgment (Docket Entry 50).
The reply briefs of the City of Clarksville and Ansley
and Ashby (Docket Entries 48 and 49) were 20 and 22 pages,
respectively. In his memorandum opinion (Docket Entry 50) Judge
Campbell noted the items conceded by the Plaintiff and the items
8

that the Plaintiff had not responded to. In his memorandum Judge
Campbell did not make any findings that the Plaintiff’s claims were
made in bad faith. He did, however, find that the Plaintiff failed
to show there was sufficient merit in any of the claims to survive
summary judgment.
Subsequently,
Circuit.
granting

She

only

summary

the

appealed

the

judgment

on

discrimination claim (Docket
was

critical

of

Plaintiff

the

appealed

District
a

Entry

Plaintiff’s

to

Court’s

the

Sixth

decision

municipal-liability
61).

The

brief

and

Sixth

in

race

Circuit

affirmed

the

District Court’s granting of summary judgment without benefit of
oral argument.Defendants subsequently filed a motion for attorneys’
The
fees and costs (Docket Entry 62), which at the request of the
Magistrate Judge, were delineated at Docket Entry 71 for costs in
the amount of $6,910.60. This sum was made up of $1,910.20 for
deposition transcripts and $5,000 for an expert witness fee for
their expert Philip Davidson. They advised that for attorneys’ fees
they billed at the rate of $1751 per hour, and that their total
attorneys’ fees request was for $94,570. This motion was thoroughly
briefed by the parties and the Magistrate Judge conducted oral
argument on the matter on May 29, 2013, as noted in Docket Entry
72.

1

There is no dispute this rate is reasonable.

9

LEGAL DISCUSSION
The parties agree that the Court may allow costs pursuant
to Rule 54(d)(1) of the Federal Rules of Civil Procedure in 28
U.S.C. § 1920. The Plaintiff, however, contends that the costs for
the

deposition

transcripts

of

the

Defendants’

employees

was

unnecessary as their testimony could have been produced by way of
affidavits. The Plaintiff argues that therefore transcripts were
unnecessary and that the Court has discretion to deny such costs,
citing a number of cases (Docket Entry 65, p. 3-4). The Defendants
point

out

that

one

of

the

transcripts

was

the

Plaintiff’s

deposition and that they needed the transcripts of the deposition
of their employees in preparing their extensive motions for summary
judgment. They make the very reasonable argument that deposition
testimony of witnesses is far superior to affidavits since an
affidavit may not be used to contradict a deposition. Therefore, in
order to prepare their statement of undisputed facts they needed
transcripts and did not want to simply rely on affidavits.
The

Magistrate

Judge

finds

this

argument

to

be

persuasive. It appears that the copies of the transcripts of their
witnesses and the costs for the transcripts of the Plaintiff and
the other witnesses was both reasonable and necessary to their
defense of this case.2

2

As the Defendants point out in their reply (Docket Entry 71), the
Plaintiff did take the deposition of a number of City employees and it
was entirely reasonable for them to secure copies of transcripts of any
deposition that the Plaintiff took. It appears that for the depositions
the Plaintiff took that the Defendants in fact only ordered copies.

10

Concerning the expert witness fee in the amount of $5,000
for Philip Davidson, the Magistrate Judge following argument by
counsel, had originally indicated that he believed an award in the
amount of $4,500 would be appropriate. In preparing this report and
recommendation the Magistrate Judge has reconsidered this issue.
The Defendants have requested this award under 28 U.S.C. § 1920(3).
The fee for witnesses under § 1920(3) is limited to the statutory
amount for ordinary witnesses 28 U.S.C. § 1821, L&W Supply Corp. v.
Acuity, 475 F.3d 737 (6th Cir. 2007). In that case the Sixth Circuit
noted that the Supreme Court in Arlington v. Murphy, 126 S. Ct.
2455 (2006) held that expert witness fees are not recoverable as
costs absent explicit statutory authority. Id. at 739-41. The Court
in L&W Supply does note that, while expert fees are not allowable
as costs under 28 U.S.C. § 1920 and 1821 and they may be allowed as
part of attorney fees where Congress has specifically provided for
their recovery. Congress amended 42 U.S.C. § 1988 to provide that
expert fees could be allowed by the Court in its discretion as part
of an award of attorneys’ fees in various enumerated civil right
statutes, such as 1983 and 42 U.S.C. § 2000d, et seq.
Therefore, the Court may not award expert fees as part of
costs, but may award them as part of attorneys’ fees.3

3

Given the unusual nature of the flat fee charged by the expert, the
Magistrate Judge, even if he were awarding fees for experts, would only
allow $4,500 as a reasonable amount given the description of the work
provided by the expert, Mr. Davidson. Because summary judgment was
granted Mr. Davidson did not testify and he was not deposed.

11

The hardest part of this case is a decision on whether a
prevailing defendant in a case of this nature should be allowed
attorneys’ fees. Both sides agree that the base case for making
this decision is Christiansburg Garment Co. v. EEOC, 434 U.S. 412
(1978). The Supreme Court held that a prevailing defendant in a
civil rights case is only entitled to attorneys’ fees where the
Plaintiff’s action was “frivolous, unreasonable, or groundless, or
the plaintiff continued to litigate after it clearly became so.
Christiansburg

at

421.

The

Supreme

Court

in

Christiansburg

cautioned against applying 20/20 hindsight stating:
In applying these criteria, it is important that a
district court resist the understandable temptation to
engage in post hoc reasoning by concluding that, because
a plaintiff did not ultimately prevail, his action must
have been unreasonable or without foundation. This kind
of hindsight logic could discourage all but the most
airtight claims, for seldom can a prospective plaintiff
be sure of ultimate success. No matter how honest one’s
belief that he has been the victim of discrimination, no
matter how meritorious one’s claim may appear at the
outset, the course of litigation is rarely predictable.
Decisive facts may not emerge until discovery or trial.
The law may change or clarify in the midst of litigation.
Even when the law or the facts appear questionable or
unfavorable at the outset, a party may have an entirely
reasonable ground for bringing suit.
434 U.S. at 421-422.
Attorneys’ fees can be awarded under Christiansburg even
though the case was not brought or continued in subjective bad
faith.
There

are

numerous

cases

following

Christiansburg

discussing the awarding of attorneys’ fees to prevailing defendants

12

in civil right cases. The Sixth Circuit in Tahff v. Proctor, 316
F.3d 584, 596 (6th Cir. 2003) noted that an award of attorneys’ fees
against the losing plaintiff in a civil rights action is an extreme
sanction

and

must

be

limited

to

truly

egregious

cases

of

misconduct. A prevailing defendant should only recover upon the
findings of a district court that the plaintiff’s action was
frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith.
The Sixth Circuit in Riddle v. Egensperger, 286 F.3d 542
(6th Cir. 2001) stated:
A plaintiff who continues to litigate claims after
discovery has concluded, proceeds to summary judgment,
and a judge thereafter rules that the claims are without
merit, does not necessarily support the conclusion that
the plaintiff’s claims were frivolous, unreasonable, or
groundless, especially if there are viable claims
intertwined to the meritless claims. Even though the
claims after discovery are found to be without merit by
a court, such a finding does not equate with a
determination that the claims were without foundation
when the complaint was initially filed. Although the
District Court found that there was no evidence to
support some of Riddles claims, the District Court noted
that discovery was ‘necessary’ to evaluate Plaintiff’s
extensive complaint and to prepare the filings
‘necessary’ to ‘obtain’ summary judgment. If the
underlying claims and Appellants’ action were frivolous,
Defendants could have used Rule 12(b)(6) to narrow the
claims at the onset of the case, rather than engaging in
extensive discovery in order to ‘obtain’ summary
judgment. Rule 56 is a tool to narrow the factual and
legal issues to be brought to trial but does not
necessarily mean that a finding not in favor of a
plaintiff means that the plaintiff has no basis for
filing a complaint. ‘Decisive facts may not emerge until
discovery or trial. The law may change or clarify in the
midst of litigation.’ Christiansburg, 434 U.S. at 423, 98
S. Ct. 694. A potential plaintiff’s fear of an increased
risk of being assessed attorney fees after extensive
13

discovery has taken place and who continues to proceed to
a ruling on a summary judgment motion, would create
disincentive to the enforcement of civil rights laws and
would have a chilling effect on a plaintiff who seeks to
enforce his/her civil rights, especially against a
government official. See Dean v. Riser, 240 F.3d 505, 510
(5th Cir. 2001).
Although the Magistrate Judge believes that the Plaintiff
could certainly have acted with more dispatch in abandoning a
number of her claims before the Defendants filed their extensive
summary

judgment

motions,

the

Magistrate

judge

is

unable

to

conclude that this is a truly exceptional case that warrants the
imposition of attorneys’ fees on the Plaintiff.
While both the District Judge and the Court of Appeals
ruled

against

the

Plaintiff

on

all

aspects

of

her

case

the

Magistrate Judge fails to find that there were specific findings
that

the

Plaintiff’s

claims

were

frivolous,

unreasonable,

or

groundless to the extent that attorneys’ fees are justified. The
Defendants are correct that the Plaintiff certainly took her own
sweet time in taking discovery in the matter and that with more
reasonable diligence and attention to this case a number of her
claims should and could have been abandoned. However, a review of
the case does not show that the Plaintiff’s delays and extensions
were excessive to the extent that they justify attorneys’ fees.
The Defendants could have availed themselves at a much
earlier

stage

pleadings,

of

Rule

particularly

12(b)(6)

or

concerning

limitation issues under Rule 12(e).
14

requested
some

of

more

the

specific

statute

of

Although

not

required

by

any

particular

rule,

the

Defendants could certainly have made a request of the Plaintiff to
dismiss a number of her complaints before they filed their summary
judgment motion. Had they done this and the Plaintiff refused to
drop claims the Magistrate Judge would have been much more inclined
to recommend that attorneys’ fees be awarded.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that costs be awarded in the amount of $1,910.20 and
that the request for attorneys’ fees, including the expert witness
fee, be denied.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation.

Thomas v. Arn, 474 U.S. 140 106 S.

Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 9th day of August, 2013.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

15