Russ v. Memphis Light Gas & Water Division
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
JOANNE P. RUSS,
MEMPHIS LIGHT, GAS AND WATER
Before the Court is Defendant Memphis Light, Gas and Water
Division’s (“MLGW”) November 8, 2016 Motion for Attorney’s Fees
(ECF No. 158 at 2924.1)
responded on February 13, 2017.
replied on March 6, 2017.
Plaintiff Joanne Russ
(ECF No. 177 at 4550.)
(ECF No. 181 at 4569.)
For the following reasons, the Motion is DENIED.
Russ filed this action against MLGW alleging discrimination
Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., as amended
by the ADA Amendment Act of 2008 (collectively, the “ADA”);
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
(ECF No. 24 at 79-80; see also ECF No.
“(1) time-barred . . . ;
unrelated to Plaintiff’s ADA cause of action.”
(ECF No. 24 at
MLGW also filed a “Partial Motion to Dismiss” under Rule
(ECF No. 31 at 109.)
Although MLGW contended that
construed to support or constitute discrete and separate claims
action . . . these
Plaintiff later filed an Amended Complaint to correct a date in
one of the allegations.
(ECF No. 36 at 140.)
Complaint and the Amended Complaint are referred to as the
Unless otherwise noted, references to “Rule __” are to the
Federal Rules of Civil Procedure.
failure to state a claim.”
(Id. at 110.)
MLGW asked the Court
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
The Court entered an order addressing MLGW’s motions.
No. 39 at 174.)
Addressing the partial motion to dismiss, the
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.
“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
(Id. at 180.)
The Court also found that those
“material . . . to
differently after she became disabled”
and “material . . . to
show that MLGW had a discriminatory motive.”
(Id. at 181.)
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 inclusion of the challenged allegations will not
incentive and opportunity to explore these matters in
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.
MLGW subsequently moved for summary judgment.
denying in part the motion.
(ECF No. 81
(ECF No. 111 at 1607.)
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.)
The Court denied
request for a 40-hour work week and her claim for constructive
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.
(ECF No. 139.)
(Id. at 1608.)
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.
(ECF No. 143.)
At the close of
all proof, MLGW renewed its motion for judgment as a matter of
(ECF No. 146.)
The Court again deferred ruling on the
motion and submitted the case to the jury.
returned its verdict in favor of MLGW and against Russ on the
(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.)
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
Original or Amended Complaints).”
(ECF No. 155 at 2102.)
(b) $65,594.63 for the discovery phase; (c) $35,499.31 for the
attempts; (e) $113,714.88 for trial preparation; (f) $79,020.00
for trial; and (g) $440.80 for post-trial matters.
(ECF No. 158
individual claims in presenting its fee calculations for each
phase of the litigation.
MLGW seeks attorney’s fees under Rule 54(d)(2) and Local
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
Fed. R. Civ. P. 54(d)(2)(B)(ii)-(iii).
Local Rule 54.1
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
any other factors that the Court should consider in
making the award.
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
MLGW seeks attorney’s fees under the ADA (specifically, 42
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
In certain actions under the civil rights laws, “a district
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
Id. at 422.
“An award of attorney’s fees against a losing plaintiff in
Cont’l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986).
court must not “engage in post hoc reasoning by concluding that,
because a plaintiff did not ultimately prevail, his action must
discourage all but the most airtight claims.”
434 U.S. at 421-22.
“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
presented sufficient evidence to establish a prima facie case;
(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).
“Allegations that, upon
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.
Hughes v. Rowe, 449
Christiansburg, 434 U.S. at 421-22).
Garner v. Cuyahoga Cnty.
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.
“[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.
the “defendant [may] receive only the portion of his fees that
he would not have paid but for the frivolous claim.”
Where a defendant incurs attorney’s fees defending against
frivolous claims, “if the defendant would have incurred those
The fee applicant must “submit appropriate documentation to
meet ‘the burden of establishing entitlement to an award.’”
at 838 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
court may reduce the award accordingly.’”
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).
unreasonable and without any foundation,” including the claims
that proceeded to trial.
(ECF No. 155 at 2102.)
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.)
that her action survived summary judgment and that the Court
twice declined to grant MLGW’s motion for judgment as a matter
(ECF No. 177 at 4550-51.)
Russ argues that “[t]here
was no finding by the Court that the claims were frivolous,
“subjective bad faith,” or that she continued to litigate “after
the action clearly became meritless.”
(Id. at 4551.)
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
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
On the trial claims, the Balmer factors strongly
point in Russ’s favor, not MLGW’s.
upon . . . her
“conveniently shifted the narrative of her case to suit the
claims that remained” following summary judgment.
(ECF No. 155
MLGW challenges the constructive discharge claim
intention to force her to retire through its handling of her ADA
alternative reasons in support of her decision to retire.”
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.”
sufficiently probative evidence of [her claims] at trial” does
[those] . . . claims
Muzquiz v. W.A. Foote Mem’l Hosp., Inc., 70 F.3d 422, 433 (6th
MLGW’s burden is to show that Russ’s trial claims
were “frivolous, unreasonable, or groundless,” not merely nonmeritorious.4
MLGW makes a case for the claims that failed to survive
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.
persuaded by Russ’s arguments, but it also did not decide that
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.
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
(Id. at 4571.)
MLGW asked for $3,260.39 in
nontaxable costs and for $321,164.12 in attorney’s fees.
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.
to strike, Russ made it clear that she was no longer pursuing
MLGW did not brief the § 1983 claim at summary
resources defending that claim during discovery.
(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
original) (quoting Fox, 563 U.S. at 834).)
However, MLGW has
not submitted the documentation or made the distinctions that
differentiating between fees incurred defending
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.
MLGW seeks all of the fees it incurred during the
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
lumps together its fees for all claims at each phase of the
(See ECF No. 158 at 2926-27.)
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.
claims imposed substantial costs that it should not have to
For example, MLGW contends that it was required “to
successful defense at the trial,” and that the “majority of the
Plaintiff’s dismissed claims.”
(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.
defendant must show that the fees it seeks would not have been
incurred “but for the frivolous claim[s].”
Id. at 836.
offered an illustration and explained why discovery-related work
done defending both frivolous and nonfrivolous claims is not
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
the lawyer would have taken and committed the same
time to this deposition even if the case had involved
circumstance, the work does not implicate Congress’s
reason for allowing defendants to collect fees.
defendant would have incurred the expense in any
event; he has suffered no incremental harm from the
In short, the defendant has never
shouldered the burden that Congress, in enacting
§ 1988, wanted to relieve.
This Court has previously decided that the allegations that
MLGW asked to be stricken in the Complaint were relevant to
have] become relevant to proving or disproving a discriminatory
included in the . . . Complaint.”
(ECF No. 39 at 182.)
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.
The Motion is DENIED.
Request for Hearing
MLGW requests a hearing on the relief sought.
(ECF No. 158
Because the relevant facts are not in dispute and the
parties have fully briefed all issues of law, MLGW’s request for
a hearing is DENIED.
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
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