Russ v. Memphis Light Gas & Water Division

Filing 184

ORDER denying 158 Motion for Attorney Fees. Signed by Judge Samuel H. Mays, Jr on 06/12/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JOANNE P. RUSS,
Plaintiff,
v.
MEMPHIS LIGHT, GAS AND WATER
DIVISION,
Defendant.

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No. 14-02365

ORDER

Before the Court is Defendant Memphis Light, Gas and Water
Division’s (“MLGW”) November 8, 2016 Motion for Attorney’s Fees
(the “Motion”).

(ECF No. 158 at 2924.1)

responded on February 13, 2017.
replied on March 6, 2017.

Plaintiff Joanne Russ

(ECF No. 177 at 4550.)

MLGW

(ECF No. 181 at 4569.)

For the following reasons, the Motion is DENIED.
I.

Background
Russ filed this action against MLGW alleging discrimination

and

retaliation

and

seeking

relief

under

the

Americans

with

Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., as amended
by the ADA Amendment Act of 2008 (collectively, the “ADA”);

1

Unless otherwise noted, all pin cites for record citations are
to the “PageID” page number.

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e; and 42 U.S.C. § 1983.2

(ECF No. 1 at 1.)

MLGW moved to strike several paragraphs in the Complaint
under Rule 12(f), contending that the Complaint alleged “only” a
single count, a violation of the ADA “by discriminating and
retaliating against [Russ] based upon her alleged disability or
perceived disability.”3
17

at

51-52.)

MLGW

paragraphs

were

inconsistent

with

(ECF No. 24 at 79-80; see also ECF No.
argued

that

the

allegations

[Russ’s

EEOC]

Charge;

those

(2) new

“(1) time-barred . . . ;

in

and

and/or

unrelated to Plaintiff’s ADA cause of action.”

(3) factually
(ECF No. 24 at

79.)
MLGW also filed a “Partial Motion to Dismiss” under Rule
12(b)(6).
the

(ECF No. 31 at 109.)

Complaint

alleged
extent

included

violations
[certain]

of

only
the

Although MLGW contended that

“one

[ADA],”

allegations

[in

general
it

asked

the

cause

of

action:

that,

“[t]o

the

Complaint]

could

be

construed to support or constitute discrete and separate claims
under

the

umbrella

action . . . these

claims

of

Plaintiff’s

should

be

ADA

formally

cause
dismissed

of
for

2

Plaintiff later filed an Amended Complaint to correct a date in
one of the allegations.
(ECF No. 36 at 140.)
Both the
Complaint and the Amended Complaint are referred to as the
“Complaint.”
3

Unless otherwise noted, references to “Rule __” are to the
Federal Rules of Civil Procedure.
2

failure to state a claim.”
“to

dismiss

with

prejudice

(Id. at 110.)
all

MLGW asked the Court

discrete

and

separate

claims

contained in the Complaint that [were] (1) time-barred, having
occurred prior to April 17, 2013; (2) not included in the Charge
and alleged to have occurred prior to filing the Charge; (3) not
based on disability discrimination; and (4) based on retaliatory
acts

that

allegedly

accommodation request.”

occurred

before

Plaintiff

made

(Id.)

The Court entered an order addressing MLGW’s motions.
No. 39 at 174.)

her

(ECF

Addressing the partial motion to dismiss, the

Court explained:
MLGW’s Partial Motion to Dismiss repeats the arguments
made in its . . . Motion to Strike.
MLGW seeks to
strike or dismiss paragraphs 6-17, 19-23, and 29 of
the . . . Complaint. MLGW argues that the allegations
in those paragraphs are immaterial because the events
alleged occurred before Russ’[s] disability or are not
relevant to proving discrimination or retaliation
under the ADA. MLGW’s Partial Motion to Dismiss does
not challenge either of Russ’[s] theories of recovery,
discrimination or retaliation.
(Id. at 177 (citations omitted).)

The Court construed MLGW’s

partial motion to dismiss as a motion to strike.
Addressing

the

motions

to

strike,

the

(Id.)

Court

found

that

“events in the challenged paragraphs, beginning with the start
of [Russ’s] employment at MLGW and leading up to the filing of
her September 2013 internal charge and October 2013 request for
accommodation,

provide

background

3

information

for

Russ’[s]

timely claims.”
events

were

(Id. at 180.)

The Court also found that those

“material . . . to

show

that

differently after she became disabled”

MLGW

rejected

MLGW’s

argument

that,

[Russ]

and “material . . . to

show that MLGW had a discriminatory motive.”
Court

treated

(Id. at 181.)
if

the

The

challenged

paragraphs in the Complaint were not stricken, MLGW would be
required to expend “considerable time and financial resources”
to engage in discovery related to, and defend itself against,
time-barred and nontriable allegations.

(Id. at 181-82.)

The

Court explained:
The inclusion of the challenged allegations will not
significantly
prejudice
MLGW.
MLGW
has
ample
incentive and opportunity to explore these matters in
discovery.
Because the alleged events may become
relevant to proving or disproving a discriminatory
motive, MLGW would have the same incentive to explore
the challenged allegations in discovery even if they
were not included in the . . . Complaint.
(Id. at 182.)

The Court denied MLGW’s motions.

(Id.)

MLGW subsequently moved for summary judgment.
at

316.)

The

Court

entered

denying in part the motion.

an

order

granting

(ECF No. 81
in

(ECF No. 111 at 1607.)

part

and

The Court

granted the motion on all claims for retaliation under the ADA
and Title VII, the claim for hostile work environment under the
ADA, and the claim for failure to accommodate under the ADA
based on MLGW’s denial of Russ’s request for additional staff
and a 9:30 a.m. start time.

(Id. at 1640.)

4

The Court denied

the

summary

accommodate

judgment
under

the

motion
ADA

on

based

Russ’s
on

claim

MLGW’s

for

denial

failure
of

to

Russ’s

request for a 40-hour work week and her claim for constructive
discharge.

(Id.)

The Court did not address the claim under 42

U.S.C. § 1983 based on Russ’s prior representations that she was
not proceeding on that claim.
Russ’s
trial.

remaining

(ECF No. 139.)

(Id. at 1608.)

claims

proceeded

to

a

seven-day

jury

At the close of Russ’s proof, MLGW moved

for judgment as a matter of law under Rule 50.
The Court deferred ruling on the motion.

(Id.)

(ECF No. 143.)
At the close of

all proof, MLGW renewed its motion for judgment as a matter of
law.

(ECF No. 146.)

The Court again deferred ruling on the

motion and submitted the case to the jury.

(Id.)

The jury

returned its verdict in favor of MLGW and against Russ on the
remaining claims.

(ECF No. 147.)

The Court entered judgment in

favor of MLGW and dismissed the action.
This Motion followed.

(ECF No. 151 at 1961.)

MLGW seeks an award of “all its

attorney’s fees incurred in connection with this litigation -past, present and future.”

(ECF No. 158 ¶ 6 at 2926.)

MLGW

argues that “Plaintiff’s lawsuit was frivolous, unreasonable and
without any foundation, particularly with regard to her timebarred, non-exhausted, and non-ADA claims -- based upon acts
occurring in the 1970’s, 80’s, 90’s and 2000’s, discrimination
in violation of Title VII (when no such allegations had been
5

preserved

in

Plaintiff’s

Plaintiff

had

not

Charge),

included

such

Original or Amended Complaints).”
At

present,

follows:

MLGW

asks

(a) $16,751.00

a

ADA

cause

retaliation
of

action

(when

in

her

(ECF No. 155 at 2102.)

for
for

and

$321,164.12,
the

categorized

pre-discovery

as

phase;

(b) $65,594.63 for the discovery phase; (c) $35,499.31 for the
dispositive-motion

phase;

(d) $10,143.50

for

two

mediation

attempts; (e) $113,714.88 for trial preparation; (f) $79,020.00
for trial; and (g) $440.80 for post-trial matters.
¶¶

7-8

at

2926-27.)

MLGW

does

not

(ECF No. 158

differentiate

among

individual claims in presenting its fee calculations for each
phase of the litigation.
II.

Legal Standards
MLGW seeks attorney’s fees under Rule 54(d)(2) and Local

Rule 54.1.

Rule 54(d)(2) provides that a party seeking an award

of attorney’s fees must, inter alia, “specify the judgment and
the statute, rule, or other grounds entitling the movant to the
award” and “state the amount sought or provide a fair estimate
of it.”

Fed. R. Civ. P. 54(d)(2)(B)(ii)-(iii).

Local Rule 54.1

provides:
In addition to the requirements of Fed. R. Civ. P.
54(d)(2), a motion for an award of attorney’s fees
shall be supported by a memorandum setting forth the
authority of the Court to make such an award, why the
movant should be considered the prevailing party, if
such a consideration is required for the award, and

6

any other factors that the Court should consider in
making the award.
L.R. 54.1(b).

The rule requires that the motion be supported by

“an affidavit or declaration of counsel setting out in detail
the number of hours spent on each aspect of the case, and the
rate

customarily

charged

by

counsel

for

such

work.”

L.R.

54.1(b)(1).
MLGW seeks attorney’s fees under the ADA (specifically, 42
U.S.C.

§ 12205),

Title

VII

(specifically,

42

U.S.C.

§ 2000e-

5(k)), and 42 U.S.C. § 1988(b) (the attorney’s fees provision
for actions under § 1983).

The parties agree that the legal

standard articulated in Christiansburg Garment Co. v. EEOC, 434
U.S. 412 (1978), governs assessment of attorney’s fees under
these statutes.
In certain actions under the civil rights laws, “a district
court

may

in

its

discretion

award

attorney’s

fees

to

a

prevailing defendant” even though the action is “not brought in
subjective bad faith.”

Id. at 421.

A “plaintiff should not be

assessed his opponent’s attorney’s fees unless a court finds
that his claim was frivolous, unreasonable, or groundless, or
that the plaintiff continued to litigate after it clearly became
so.”

Id. at 422.
“An award of attorney’s fees against a losing plaintiff in

a

civil

rights

action

is

an

extreme

7

sanction,

and

must

be

limited

to

truly

egregious

cases

of

misconduct.”

Cont’l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986).

Jones

v.

A district

court must not “engage in post hoc reasoning by concluding that,
because a plaintiff did not ultimately prevail, his action must
have

been

unreasonable

or

without

foundation,”

discourage all but the most airtight claims.”
434 U.S. at 421-22.

which

“could

Christiansburg,

“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.”

Id. at 422.

“Courts should consider the following factors when making
an

attorneys’

fees

determination:

(1) whether

plaintiff

presented sufficient evidence to establish a prima facie case;
(2) whether

defendant

offered

to

settle

the

case;

and

(3) whether the trial court dismissed the case prior to trial or
held a full-blown trial on the merits.”

Balmer v. HCA, Inc.,

423 F.3d 606, 615-16 (6th Cir. 2005), abrogated on other grounds
by Fox v. Vice, 563 U.S. 826 (2011).
careful

examination,

prove

legally

“Allegations that, upon

insufficient

to

require

a

trial are not, for that reason alone, ‘groundless’ or ‘without
foundation’ as required by Christiansburg.”
U.S. 5, 15-16 (1980).

Even a plaintiff’s failure to state a

prima facie case is not dispositive.
Juvenile

Court,

554

Hughes v. Rowe, 449

F.3d

624,

637

Christiansburg, 434 U.S. at 421-22).
8

Garner v. Cuyahoga Cnty.
(6th

Cir.

2009)

(citing

In an action “involving both frivolous and non-frivolous
claims, a defendant may recover the reasonable attorney’s fees
he expended solely because of the frivolous allegations.”
563 U.S. at 840-41.

Fox,

“[T]he presence of reasonable allegations

in a suit does not immunize the plaintiff against paying for the
fees that his frivolous claims imposed.”

Id. at 834.

However,

the “defendant [may] receive only the portion of his fees that
he would not have paid but for the frivolous claim.”
836.

Id. at

Where a defendant incurs attorney’s fees defending against

frivolous claims, “if the defendant would have incurred those
fees

anyway,

court

has

to

no

plaintiff.”

defend
basis

against

for

non-frivolous

transferring

the

claims,
expense

then
to

a

the

Id.

The fee applicant must “submit appropriate documentation to
meet ‘the burden of establishing entitlement to an award.’”

Id.

at 838 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
If

“‘the

documentation

of

hours

is

inadequate,

court may reduce the award accordingly.’”

the

district

Ohio Right to Life

Soc’y, Inc. v. Ohio Elections Comm’n, 590 F. App’x 597, 603 (6th
Cir. 2014) (quoting Hensley, 461 U.S. at 433).
III. Analysis
MLGW

contends

that

Russ’s

entire

action

was

“frivolous,

unreasonable and without any foundation,” including the claims
that proceeded to trial.

(ECF No. 155 at 2102.)
9

MLGW argues

that the jury found in its favor on those claims and that MLGW
“should not be burdened with all of the costs it incurred to
achieve the deserved verdict.”

(Id. at 2104.)

Russ responds

that her action survived summary judgment and that the Court
twice declined to grant MLGW’s motion for judgment as a matter
of law.

(ECF No. 177 at 4550-51.)

Russ argues that “[t]here

was no finding by the Court that the claims were frivolous,
unreasonable

or

groundless,”

that

she

brought

her

claims

in

“subjective bad faith,” or that she continued to litigate “after
the action clearly became meritless.”
Although
claims,

the

those

groundless.

jury

claims

did

not

were

not

find

(Id. at 4551.)
for

Russ

frivolous,

on

her

trial

unreasonable,

or

Russ not only “presented sufficient evidence to

establish a prima facie case” on those claims, but those claims
also survived summary judgment and proceeded to “a full-blown
trial

on

the

merits.”

Balmer,

423

F.3d

at

615-16.

MLGW

concedes that it attempted to settle the case prior to trial
(ECF No. 155 at 2104), which is further evidence that the trial
claims were not frivolous.

See EEOC v. Peoplemark, Inc., 732

F.3d 584, 592 (6th Cir. 2013) (citing Balmer, 423 F.3d at 61516) (finding attorney’s fees awarded to defendant permissible in
part because there was no indication defendant offered to settle
the case).

On the trial claims, the Balmer factors strongly

point in Russ’s favor, not MLGW’s.
10

MLGW

argues

“unreasonable
intended

to

entitlement

that

and

the

lacking

base

her

to

ADA

[a]

failure-to-accommodate
foundation”

because

discrimination

claim

40-hour

per

week

claim

Russ

was

“never

upon . . . her

restriction”

and

“conveniently shifted the narrative of her case to suit the
claims that remained” following summary judgment.
at 2103-04.)
on

the

(ECF No. 155

MLGW challenges the constructive discharge claim

grounds

that

Russ

“offered

no

evidence

of

[MLGW’s]

intention to force her to retire through its handling of her ADA
accommodation

request”

and

that

she

“herself

offered

several

alternative reasons in support of her decision to retire.”

(Id.

at 2103.)
That Russ elected to try the claims that remained following
summary judgment, although some of her dismissed claims may have
been more central to her Complaint, does not make the surviving
claims “unreasonable and lacking foundation.”
the

sufficiency

trial,

but

the

of

the

fact

evidence
that

Russ

supporting
may

not

MLGW challenges
Russ’s
have

claims

at

“present[ed]

sufficiently probative evidence of [her claims] at trial” does
not

necessarily

“render

[those] . . . claims

groundless.”

Muzquiz v. W.A. Foote Mem’l Hosp., Inc., 70 F.3d 422, 433 (6th
Cir. 1995).

MLGW’s burden is to show that Russ’s trial claims

11

were “frivolous, unreasonable, or groundless,” not merely nonmeritorious.4
MLGW makes a case for the claims that failed to survive
summary

judgment,

frivolous,

but

unreasonable,

those
or

claims

groundless.

were

not

necessarily

Responding

to

the

motion for summary judgment, Russ argued that she had adequately
preserved her claims in her EEOC Charge and adequately pled her
claims in the Complaint, that she had made out a prima facie
case for her claims, and that there were triable issues of fact.
(See

generally

ECF

No.

91-1

at

1136.)

The

Court

was

not

persuaded by Russ’s arguments, but it also did not decide that
Russ’s

claims

were

frivolous,

unreasonable,

or

groundless.

Although Russ’s § 1983 claim was of questionable merit, Russ did
not “continue[] to litigate [it] after it clearly became so.”
Christiansburg, 434 U.S. at 422.

4

In response to MLGW’s motions

MLGW also argues that it “was required to prove at least one
factor from the Christiansburg test in order to obtain
reimbursement from Plaintiff for its non-taxable costs” and
that, because Russ did not oppose MLGW’s motion for nontaxable
costs, “Plaintiff’s assent to [MLGW’s] receiving an award of
non-taxable costs should be interpreted as an equal assent to
[MLGW’s] entitlement to reimbursement for its attorney[’s]
fees . . . .”
(ECF No. 181 at 4571-72.)
MLGW contends that
“Plaintiff should not be allowed to take an opposing stance at
this juncture.”
(Id. at 4571.)
MLGW asked for $3,260.39 in
nontaxable costs and for $321,164.12 in attorney’s fees.
(ECF
No. 155 at 2086; ECF No. 158 at 2926.)
MLGW’s argument that
Russ agreed to pay something rather than nothing and is now
bound to pay everything is not well taken, particularly given
that the uncontested costs amount is insubstantial by comparison
to the asserted attorney’s fees.
12

to strike, Russ made it clear that she was no longer pursuing
that claim.
judgment,

MLGW did not brief the § 1983 claim at summary

and

MLGW

does

not

assert

that

it

expended

resources defending that claim during discovery.

any

(See ECF No.

81-1 at 320 n.5.)
Even if some of Russ’s claims were considered frivolous,
MLGW could receive only attorney’s fees that it “would not have
paid but for the frivolous claim[s].”

Fox, 563 U.S. at 836.

MLGW correctly quotes Fox that a “‘defendant may deserve fees
even if not all the plaintiff’s claims were frivolous,’” and
that, regarding frivolous claims, a “court can shift to that
plaintiff ‘the reasonable costs that those claims imposed on
[her]

adversary.’”

(ECF

No.

155

at

2101-02

original) (quoting Fox, 563 U.S. at 834).)

(alteration

in

However, MLGW has

not submitted the documentation or made the distinctions that
Fox requires,
frivolous
claims.

differentiating between fees incurred defending

claims

and

fees

incurred

defending

nonfrivolous

Although “[t]he essential goal in shifting fees (to

either party) is to do rough justice, not to achieve auditing
perfection,” some differentiation is necessary.

Fox, 563 U.S.

at 838-39.

MLGW seeks all of the fees it incurred during the

litigation.

MLGW does not distinguish between trial claims and

nontrial claims, let alone the various nontrial claims that were
dismissed at summary judgment.

Like the defendant in Fox, MLGW
13

lumps together its fees for all claims at each phase of the
litigation

and

takes

the

position

that

frivolous.

(See ECF No. 158 at 2926-27.)

all

claims

were

That position would

make the differentiation analysis that Fox requires unnecessary.
For the reasons discussed above, however, MLGW’s argument that
all of Russ’s claims were frivolous lacks merit.
MLGW

contends

that

defending

against

Russ’s

frivolous

claims imposed substantial costs that it should not have to
assume.
engage

For example, MLGW contends that it was required “to
in

extensive

comprehensive

motion

discovery
for

summary

in

order

judgment

to
and

prepare
to

mount

a
a

successful defense at the trial,” and that the “majority of the
questions

asked

of

the

deposition

Plaintiff’s dismissed claims.”

witnesses

were

related

to

(ECF No. 155 at 2103.)

Fox’s but-for standard does not provide that a defendant is
entitled to “fees for work that is ‘fairly attributable’ to the
frivolous portion of the lawsuit.”

563 U.S. at 835.

Rather, a

defendant must show that the fees it seeks would not have been
incurred “but for the frivolous claim[s].”

Id. at 836.

Fox

offered an illustration and explained why discovery-related work
done defending both frivolous and nonfrivolous claims is not
compensable:
Suppose, for example, that a defendant’s attorney
conducts a deposition on matters relevant to both a
frivolous and a non-frivolous claim -- and more, that
14

the lawyer would have taken and committed the same
time to this deposition even if the case had involved
only
the
non-frivolous
allegation.
In
that
circumstance, the work does not implicate Congress’s
reason for allowing defendants to collect fees.
The
defendant would have incurred the expense in any
event; he has suffered no incremental harm from the
frivolous claim.
In short, the defendant has never
shouldered the burden that Congress, in enacting
§ 1988, wanted to relieve.
Id.
This Court has previously decided that the allegations that
MLGW asked to be stricken in the Complaint were relevant to
Russ’s

claims

and

that

“[b]ecause

the

alleged

events

[might

have] become relevant to proving or disproving a discriminatory
motive,

MLGW

challenged

would

have

allegations

in

the

same

incentive

discovery

included in the . . . Complaint.”

even

if

to

explore

they

were

(ECF No. 39 at 182.)

the
not
MLGW

has not shown that it would not have incurred its discovery
expenses but for any frivolous claims.

MLGW has likewise failed

to make an appropriate showing regarding the other phases of
litigation for which it seeks fees.
MLGW has not adequately demonstrated that it is entitled to
attorney’s fees in any amount.
IV.

The Motion is DENIED.

Request for Hearing
MLGW requests a hearing on the relief sought.

at 2928.)

(ECF No. 158

Because the relevant facts are not in dispute and the

15

parties have fully briefed all issues of law, MLGW’s request for
a hearing is DENIED.
V.

Conclusion
For the foregoing reasons, the Motion is DENIED.

So ordered this 12th day of June, 2017.

/s/_Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

16