Chalmers v. Evelyn S. McDuffie d/b/a Interstate Bail Bonds

Filing 40

ORDER granting 34 Motion to Dismiss Claim for Attorney's Fees. Signed by Judge Jon Phipps McCalla on 6/15/2016. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
________________________________________________________________
EDWARD CHALMERS,

)
)
Plaintiff,
)
)
v.
)
No. 2:16-cv-02036-JPM-tmp
)
EVELYN MCDUFFIE d/b/a
)
INTERSTATE BAIL BONDS,
)
JERRY GLYN HOLLAND, II,
)
ANDREW A. BAYER,
)
)
Defendants.
)
________________________________________________________________
ORDER GRANTING DEFENDANT EVELYN MCDUFFIE’S MOTION TO DISMISS
PLAINTIFF’S CLAIM FOR ATTORNEY’S FEES
________________________________________________________________
On May 18, 2016, Defendant Evelyn McDuffie d/b/a Interstate
Bail Bonds (“McDuffie) filed a motion to dismiss Plaintiff’s
claim for attorney’s fees.

(ECF No. 34.)

Plaintiff did not

respond to the instant motion.
“Tennessee, like most jurisdictions, adheres to the
‘American rule’ for award of attorney fees.”

Cracker Barrel Old

Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn.
2009) (footnote and citation omitted).

“Under the American

rule, a party in a civil action may recover attorney fees only
if: (1) a contractual or statutory provision creates a right to
recover attorney fees; or (2) some other recognized exception to
the American rule applies, allowing for recovery of such fees in

a particular case.”

Id.

The American rule, however, simply

prevents a prevailing litigant from “collect[ing] a reasonable
attorneys’ fee from the loser.” Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 247 (1975).
The American rule does not apply to consequential damages
flowing from a separate harm.

Under Tennessee law, “[o]ne who

through the tort of another has been required to act in the
protection of his interests by bringing or defending an action
against a third person is entitled to recover reasonable
compensation for loss of time, attorney fees and other
expenditures thereby suffered or incurred in the earlier
action.”

Engstrom v. Mayfield, 195 F. App’x 444, 451 (6th Cir.

2006) (emphasis omitted) (quoting Pullman Standard, Inc. v. Abex
Corp., 693 S.W.2d 336, 340 (Tenn. 1985)).
In the Amended Complaint, Plaintiff seeks, inter alia,
“attorneys’ fees and costs due to the torts of the individual
Defendants and for having to file suit against Interstate Bail
Bonds.”

(Am. Compl. ¶ 27, ECF No. 25.)

Although Plaintiff

generally sought attorney’s fees in his original Complaint, and
continues to generally seek attorney’s fees in the Amended
Complaint, the above sentence was added in the Amended
Complaint.

(See Compl. at 6-7, ECF No. 1-1; Am. Compl. at 7.)

Defendant McDuffie argues that “[t]he Pullman exception does not
allow any plaintiff who has suffered a tort to bring a separate

claim for attorney’s fees. . . .

A plaintiff bringing an

independent tort for attorney’s fees must have been dragged into
litigation with a third party.”

(ECF No. 34-1 at 4.)

According

to McDuffie, this exception applies only where an individual is
forced to defend himself against suit or where an individual is
required to bring a suit against a third party in order to
protect his rights, but does not apply in cases where an
individual brings an action against joint tortfeasors.

(Id. at

4-7.)
In the instant case, Plaintiff appears to seek attorney’s
fees only from Defendants Holland and Bayer for pursuing the
action against McDuffie.

(See Am. Compl. ¶ 27.)

The Amended

Complaint states a plausible claim that the actions of
Defendants Holland and Bayer required him to bring suit against
Defendant McDuffie to act in protection of his interests.
Although Plaintiff explicitly requests attorney’s fees from
Holland and Bayer “for having to file suit against Interstate
Bail Bonds,” (Am. Compl. ¶ 27), Plaintiff includes no such
language indicating an intent to seek attorney’s fees from
Defendant McDuffie under the Pullman exception or otherwise.

To

the extent that Plaintiff does seek attorney’s fees from
McDuffie, Defendant McDuffie’s motion to dismiss Plaintiff’s
claim for attorney’s fees is GRANTED.

Plaintiff does not state

a plausible claim that McDuffie’s actions required him to bring

suit against Holland and Bayer to protect his interests; rather,
as alleged by Plaintiff, Holland and Bayer’s own actions gave
rise to the instant lawsuit.
IT IS SO ORDERED this 15th day of June, 2016.

/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE