Williams v. Shelby County School System
Filing
163
ORDER Granting in Part and Denying in Part 110 Motion for Attorney Fees. Signed by Judge Thomas L. Parker on 2/7/2019. (pab)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KATORIA S. WILLIAMS and
DEMETRI M. FAULKNER,
Plaintiffs,
v.
SHELBY COUNTY SCHOOL SYSTEM,
MEMPHIS CITY SCHOOL SYSTEM, and
REGISTERED AGENT, MARJORIE N.
DOUGLAS,
Defendants.
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No. 2:17-cv-02284-TLP-cgc
JURY DEMAND
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION
FOR ATTORNEY’S FEES AND EXPENSES AND DENYING PLAINTIFFS’ MOTION
TO CERTIFY CONSTITUTIONALITY OF TENN. CODE ANN. § 29-20-113
Defendant Marjorie N. Douglas (“Douglas”) moves this Court for an award of attorney’s
fees and expenses after successfully defending herself here. (ECF Nos. 110, 112, & 139.)
Plaintiffs responded and the Motion is now ripe. Having considered the arguments of counsel and
the entire record, for the reasons below, the Court GRANTS IN PART AND DENIES IN PART
Douglas’ Motion. Plaintiffs’ Motion to Certify is DENIED.
BACKGROUND
Plaintiffs were employees of Defendant Shelby County School System (“SCS”) and
Douglas was their supervisor. (ECF No. 37 at PageID 384, 393–94.) Plaintiffs later sued SCS and
Douglas for discrimination. (See ECF No. 37.) Plaintiffs sued Douglas both in her official and
individual capacities, accusing her of: (1) violating the Due Process Clause of the Fourteenth
Amendment under 42 U.S.C. § 1983; (2) violating the Equal Protection Clause of the Fourteenth
Amendment under 42 U.S.C. § 1983; (3) retaliating in violation of the First Amendment under 42
U.S.C. § 1983; (4) causing emotional distress under Tennessee law; (5) inducing a breach of
contract under Tennessee law; and (6) wrongly dismissing a tenured teacher under Tennessee law.
(Id. at PageID 403–12.) Douglas moved to dismiss all claims against her in her individual capacity.
(ECF No. 42.) Because Plaintiffs claims were obviously time-barred, the Court granted Douglas’
Motion. (ECF No. 108.)
Now, Douglas moves under Rule 54(b) of the Federal Rules of Civil Procedure and Local
Rule 54.1(b) to recover attorney’s fees and expenses related to this litigation. (ECF Nos. 110, 112,
& 139.) As grounds for her Motion, Douglas asserts that the Court may award her fees and
expenses under 42 U.S.C. § 1988, 28 U.S.C. § 1927, Tennessee Code Annotated § 20-12-119,
Tennessee Code Annotated § 29-20-113, and the Court’s inherent authority. (ECF Nos. 110-1,
112.)
As a result of Douglas’ Motion, Plaintiffs move under Federal Rule of Civil Procedure
5.1(b) and 28 U.S.C. § 2403(b) to certify the constitutionality of Tennessee Code Annotated § 2920-113 to the Tennessee Attorney General, and, if necessary, to the Tennessee Supreme Court.
(ECF Nos. 152 & 158.) Plaintiffs have also disputed the reasonableness of the requested attorney’s
fees award. (ECF Nos. 118, 144, 155.)
LEGAL STANDARD
I.
Granting an Award of Attorney’s Fees and Expenses
Federal courts follow the American Rule and generally require parties to bear their own
costs and attorney’s fees. Alyseka Pipeline Servs. Co. v. Wilderness Society, 421 U.S. 240, 247
(1975). The exception to this rule is when the award of fees is authorized by statute. Pennsylvania
v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 561–62 (1986). When that is the
2
case, a party claiming entitlement to attorney’s fees and related expenses must generally move for
those fees under Rule 54(d)(2) of the Federal Rules of Civil Procedure. Under this rule, the movant
must specify the grounds on which she is seeking the award and the amount she is seeking. Fed. R.
Civ. P. 54(d)(2)(B)(ii)–(iii).
In addition to these requirements, the movant is also required under the Local Rules to
submit a memorandum of law supporting the award, an affidavit detailing the number of hours
spent on “each aspect of the case” and the rate typically charged by the attorney, and the affidavit of
an attorney in the community, who has no other involvement in the matter, “setting out the
prevailing rate charged in the community for similar services.” LR 54.1(b). Douglas’ counsel
provided the necessary support under the local rules of this Court.
II.
Calculation of Fee Award
A.
Federal Law
Federal courts calculate an award of reasonable attorney’s fees by using the “lodestar”
method. Delaware Valley Citizens Council for Clean Air, 478 U.S. at 564. This method involves
multiplying the reasonable hourly rate by the reasonable number of hours expended on the
litigation. Blum v. Stenson, 465 U.S. 886, 888 (1984). Additionally, courts will compensate parties
for the work of paralegals and law clerks. Missouri v. Jenkins by Agyei, 491 U.S. 274, 285–86
(1989).
The burden of proof lies with the movant. “The party seeking attorney’s fees ‘bears the
burden of establishing entitlement to an award and documenting the appropriate hours expended
and hourly rates.’” Yellowbook Inc. v. Brandeberry, 708 F.3d 837, 848 (6th Cir. 2013) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). “The key requirement for an award of attorney’s
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fees is that the documentation offered in support of the hours charged must be of sufficient detail
and probative value to enable the court to determine with a high degree of certainty that such hours
were actually and reasonably expended in the prosecution of the litigation.” Inwalle v. Reliance
Med. Prods., Inc., 515 F.3d 531, 553 (6th Cir. 2008).
As noted above, the first step is to calculate the number of hours “reasonably expended” in
the litigation. U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1193 (6th Cir. 1997).
Likewise, courts will exclude hours not “reasonably expended” from their calculations. Hensley,
461 U.S. at 434. In calculating an appropriate award, the district court must explain its reasoning.
Moore v. Freeman, 355 F.3d 558, 566 (6th Cir. 2004). That said, “the trial court ‘should not
become green-eyeshade accountants’ as the ‘essential goal in shifting fees (to either party) is to do
rough justice, not to achieve auditing perfection.’” Ohio Right to Life Soc., Inc. v. Ohio Elections
Comm’n, 590 F. App’x 597, 603 (6th Cir. 2014) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)).
“District courts ‘may take into account their overall sense of a suit, and may use estimates in
calculating and allocating an attorney’s time.’” Id. (quoting Fox, 563 U.S. at 838).
The second step is for the Court to determine a reasonable hourly rate. Hensley, 461 U.S. at
433. Typically, courts calculate that hourly rate by looking at the prevailing market rates in the
relevant community. Blum, 465 U.S. at 895. Local Rule 54.1(b)(2) also requires the party moving
for attorney fees to file the affidavit of an attorney, who is not associated with the case, detailing
what the prevailing market rates are in the community. “[H]ourly rates for fee awards should not
exceed the market rates necessary to encourage competent lawyers to undertake the representation
in question.” Coulter v. Tennessee, 805 F.2d 146, 149 (6th Cir. 1986). The federal approach is
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somewhat different from the approach under Tennessee law but, under either approach, courts
consider many of the same factors.
B.
Tennessee Law
Under Tennessee law, awards of attorney’s fees are not subject to a “fixed mathematical
rule” and are based on the trier of fact’s subjective judgment of the evidence and experience.
Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011) (citation omitted). At the same
time, a multi-factor analysis set forth in Tennessee Rule of Professional Conduct 1.5 guides this
determination. Id. A court considers these factors in making its determination:
(1) the time and labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services;
(8) whether the fee is fixed or contingent;
(9) prior advertisements or statements by the lawyer with respect to the fees the
lawyer charges; and
(10) whether the fee agreement is in writing.
Tenn. Sup. Ct. R. 8, RPC 1.5. Ultimately, “the reasonableness of the fee must depend upon the
particular circumstances of the individual case.” Wright, 337 S.W.3d at 181 (quoting White v.
McBride, 937 S.W.2d 796, 800 (Tenn. 1996)).
ANALYSIS
I.
42 U.S.C. § 1988
Douglas first moves for an award of attorney’s fees and expenses under 42 U.S.C. § 1988.
(ECF No. 110-1 at PageID 843.) Section 1988(b) authorizes the Court to award attorney’s fees “in
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its discretion” to the prevailing party in an action brought to enforce, among other things, 42 U.S.C.
§ 1983. The “legal standard articulated in Christianburg Garment Co. v. EEOC, 434 U.S. 412
(1978), governs assessment of attorney’s fees under” this statute. Russ v. Memphis, Light Gas and
Water Division, No. 14-02365, 2017 WL 2539803, at *3 (W.D. Tenn. June 12, 2017). Under the
Christianburg framework, 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.” Christianburg Garment Co., 434 U.S. at 422. Congress
enacted this statute “to protect defendants from burdensome litigation having no legal or factual
basis.” Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting Christianburg Garment Co., 434 U.S. at
420). The Sixth Circuit has held that “[a]n award of attorney fees against a losing plaintiff in a civil
rights action is an extreme sanction, and must be limited to truly egregious cases of misconduct.”
Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir. 2001) (quoting Jones v. The Continental Corp.,
789 F.2d 1225, 1232 (6th Cir. 1986)).
Here, the claims against Douglas were barred by the statute of limitations. It is tempting
here to award fees under this statute because the claims were frivolous or became so during
litigation. That said, if the Court were to make such an award, the burden would fall on the
Plaintiffs and not the lawyers. Yet, as explained below, this Court finds fault more with the lawyers
than Plaintiffs themselves. As a result, the Court finds that awarding fees is more appropriate as a
sanction on counsel under other statutes. The Court will thus employ its inherent discretion to
decline to award fees and expenses under this statute.
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II.
28 U.S.C. § 1927
Second, Douglas moves for fees and expenses under 28 U.S.C. § 1927. (ECF No. 110-1 at
PageID 845.) Under 28 U.S.C. § 1927, Courts may award fees in the form of sanctions against an
attorney who “objectively ‘falls short of the obligations owed by a member of the bar to the court.’”
Carter v. Hickory Healthcare Inc., 905 F.3d 963, 968 (6th Cir. 2018) (quoting Red Carpet Studios
Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006)). The movant must
show that the attorney’s conduct amounted to “something more than negligence or incompetence,”
but it does not require establishing that the attorney subjectively acted in bad faith. Id. (quoting Red
Carpet, 465 F.3d at 646). At its core, this statute imposes sanctions on those attorneys who
“abuse[] the judicial process” and needlessly multiply the proceedings. Id. at 968–69 (quoting Red
Carpet, 465 F.3d at 646). The Court finds that an award of fees and expenses under this statute
against Plaintiffs’ lawyers, Valeri Vie and Lucinda Jones is appropriate. Without deciding whether
bad faith was involved, the Court finds that Ms. Vie’s and Ms. Jones’ failure to make an objective
assessment of the application of the statute of limitations and to advise their clients accordingly to
cease needless litigation was an objective failure deserving of sanction here. Courts rightfully
expect lawyers to “not bring or defend a proceeding, or assert or controvert an issue therein, unless
after reasonable inquiry the lawyer has a basis in law and fact for doing so that is not frivolous . . .
.” Tenn. Sup. Ct. R. 8, RPC 3.1. This includes “act[ing] reasonably to inform themselves about the
facts of their client’s case and the law applicable to the case and then act[ing] reasonably in
determining that they can make good faith arguments in support of their client’s position.” Id. cmt.
2.
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With that in mind, before assessing the award, the Court has more questions to answer to
determine the appropriate amount.
A.
The Date from Which the Fee Award Runs
The Court should first determine the point from which the fee award begins to run. 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.” Carter v. Hickory Healthcare Inc., 2017 WL
1711043, at *2 (N.D. Ohio May 3, 2017) (quoting Garner v. Cuyahoga Cty. Juvenile Ct., 554 F.3d
624, 646 (6th Cir. 2009)), aff’d, 905 F.3d 963 (6th Cir. 2018). Here, the filing of Douglas’ motion
to dismiss constitutes the last point in time when counsel for Plaintiffs became aware of the statute
of limitations issues with their claims. (See ECF No. 42.) Rather than conceding that the
limitations period had run on their claims, the Plaintiffs’ attorneys continued to assert the claims
arguing, without support, that they were timely under the continuing violations doctrine. (ECF No.
44-1.) It was at this point that the attorneys failed to reasonably inform themselves of the
applicable law to preserve the integrity of the judicial process by not asserting frivolous arguments.
The Court finds Plaintiffs’ attorneys’ actions frivolous because they were unable to make a
good faith argument for application of the continuing violations doctrine here. First, Plaintiffs did
not allege a specific discriminatory act occurring within the applicable limitations period. Of
course that is necessary to invoke the continuing violations doctrine for their constitutional claims.
(ECF No. 108 at PageID 1111.) Second, case law makes it clear that the continuing violations
doctrine does not apply when an employer merely fails to remedy prior discriminatory acts. (Id. at
PageID 1112.) Plaintiffs asserted just conclusory statements to support their positions. (Id. at
PageID 1113.) Third, Plaintiff Williams provided no support for her proposition that the continuing
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violations doctrine applied to her breach of contract claim. (ECF No. 108 at PageID 1116.)
Plaintiffs’ position here was groundless. Finally, Plaintiff Faulkner cited no case law to support
holding Douglas liable for her termination under the Teacher Tenure Act, Tenn. Code Ann. §§ 492-203(a)(2), 49-5-511. (Id. at PageID 1116.) Even more, Plaintiff argued that a three-year statute
of limitations applied while citing a portion of the Teacher Tenure Act that gives terminated
teachers only 30 days to appeal their termination to the chancery court. (Id.); see also Tenn. Code
Ann. § 49-5-513(b). The Court found that none of the claims against Douglas could withstand the
motion to dismiss. (See ECF No. 108.)
As a result, Plaintiffs’ attorneys’ actions constituted a needless multiplication of the
proceedings. This is the exact type of conduct that courts should sanction under § 1927. See
Carter, 905 F.3d at 969. As stated by the Sixth Circuit, “[m]aintaining a clearly time-barred lawsuit
constitutes a classic example of conduct that warrants a sanction.” Id. Plaintiffs’ counsel perhaps
should have recognized that these complaints were time-barred before bringing the claims.
Regardless, there is no justification for the unreasonable pursuit of these claims after Douglas
informed Plaintiffs of the statute of limitations, along with case law supporting her assertions. It
was when Douglas’ lawyers noted the claims were barred that counsel for Plaintiffs objectively fell
short of their duty owed to the Court. So the Court finds that the fee award under § 1927 should
begin to run on the date Plaintiffs’ responded to Douglas’ Motion to Dismiss arguing the litigation
should proceed, October 17, 2017.
B.
Calculating the Lodestar Amount
Having found that the fee award should start on October 17, 2017, the Court should now
determine a reasonable fee award. Counsel for Douglas submitted invoices showing that Douglas
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incurred $78,123.89 in fees and expenses after that date. Robin H. Rasmussen, attorney for
Douglas, following Local Rule 54.1(b)(1), submitted an affidavit setting out the rate she and her
associates and paralegals customarily charge for such work and the hours expended. (ECF No.
110-2.) While Robert O. Binkley, Jr., Douglas’ second attorney, did not submit a comparable
affidavit, counsel did submit an affidavit of a nonparticipating, local attorney who set out the
prevailing rates charged in the community for similar services under Local Rule 54.1(b)(2) (ECF
No. 110-3) and the billing statements show the fees charged by his firm (see, e.g., ECF No. 154 at
PageID 1196). These submissions are adequate, as they allow the Court to assess the
reasonableness of the fees charged.
i.
How many hours did counsel reasonably expend?
The Court should first determine how many hours the attorneys reasonably spent
representing their client after October 17, 2017. This is not an exact science and the Court may
consider its overall sense of the suit in making this determination. See Ohio Right to Life Soc., Inc.
v. Ohio Elections Comm’n, 590 F. App’x 597, 603 (6th Cir. 2014) (quoting Fox v. Vice, 563 U.S.
826, 838 (2011)). The attorneys have submitted records showing that they billed about 369.3 hours
of work after October 17, 2017.1 That said, the Court finds that it should not impose the entire
amount billed on the other side.
As noted by Plaintiffs, Douglas hired a second firm to take over her representation after she
moved to dismiss the case. Her second attorney did not make his appearance on the record until
May 16, 2018. (See ECF No. 109.) While a litigant is free to hire the lawyer of her choosing and
research issues of her choosing, the other side should not always pay for those choices, even when,
1
This includes work performed by lead attorneys, associates, and paralegals.
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as here, the Court awards attorney fees. What is more, billing for the work of another law firm
before that firm has appeared in the case seems unfair. The Court finds that it is not appropriate
here to award attorney fees for the billing of two law firms before Mr. Binkley made his
appearance. Thus, the Court will deduct 24.8 hours charged by Mr. Binkley’s firm before his entry
of appearance. Likewise, the Court also reduces the time billed by Ms. Rasmussen’s firm by 4.6
hours for time charged after Mr. Binkley made his appearance.
Next, the overall time should be reduced by 5.1 hours for time spent researching and
drafting a motion to deposit settlement funds under Federal Rule of Civil Procedure 67. The Court
may not order parties to deposit funds under this rule, so awarding fees for that research is not
appropriate. All that said, the Court does not seek to punish Douglas’ attorneys for researching
ways to achieve their client’s objectives. As stated above, fundamental fairness requires that the
Court not impose every expenditure against the other side, even when those expenditures relate to
good-faith efforts to meet their client’s needs. This is such a situation.
Finally, the Court should address Plaintiffs’ argument that there is a three percent cap on
hours pent seeking an award of attorney’s fees. (See ECF No. 155 at PageID 1202.) Plaintiffs’ cite
Coulter v. Tennessee, 805 F.2d 146, 151 (6th Cir. 1986), for the proposition that a party is “only
entitled to 3% of the billable hours of the main case” for hours spent seeking an award of attorney’s
fees. (Id.) Yet the Sixth Circuit has abrogated Coulter’s three percent cap. See Ne. Coal. for the
Homeless v. Husted, 831 F.3d 686, 725 (6th Cir. 2016) (abrogating the attorney fee cap rule
announced in Coulter, 805 F.2d at 151). For these reasons, the Court will not impose a three
percent cap on the hours spent by Douglas’ attorneys.
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In sum, the Court finds that Douglas’ attorneys reasonably expended 334.8 hours on this
matter.
ii.
What is a reasonable hourly rate?
The next step in determining a reasonable fee award is to determine a reasonable rate. Both
Ms. Rasmussen and Mr. Binkley charged Douglas a rate of $250.00 per hour for work performed
on her behalf. Additionally, Ms. Rasmussen’s associate charged $175.00 per hour and Mr.
Binkley’s associate charged $200.00 per hour. Finally, Ms. Rasmussen’s paralegal charged rates
ranging from $110.00 to $125.00 per hour.
Courts generally determine reasonable hourly rates by looking at the prevailing rate in the
relevant market. See Blum v. Stenson, 465 U.S. 886, 895 (1984). Here, the affidavit of Clinton H.
Scott, an attorney in the relevant market, attested to the reasonableness of the rates charged by the
attorneys. (See ECF No. 110-3.) In fact, his affidavit states that attorneys routinely charge more
per hour for their work than what Douglas’ attorneys charged here. (See id.) The Court therefore
finds that the rates charged by the attorneys here are reasonable.
iii.
What is the lodestar figure?
After determining that the fees charged are reasonable, and that the reasonable hours
expended are 334.8, the Court should calculate the lodestar figure. The Court determines that the
initial figure here is $78,123.89 for fees and expenses. That said, these deductions should be
applied to calculate the final lodestar figure:
1) $25,000 paid by Shelby County Schools on Douglas’ behalf; and
2) 25% reduction for the redundant nature of the second law firm’s work.
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All in all, the final lodestar figure amounts to $39,842.92, after heeding the above deductions.2 The
Court imposes this amount against Plaintiffs’ former attorneys, Valerie Vie and Lucinda Jones,
personally under 28 U.S.C. § 1927.3
It is worth pointing out that this award represents an expense to Douglas which she would
not have incurred but for the vexatious nature of this litigation spurred on by Plaintiffs’ attorneys.
The actions of Ms. Vie and Ms. Jones amounts to more than negligence or incompetence. They
knowingly and intentionally multiplied these proceedings to grind down Douglas, resulting in a
needless multiplication of these proceedings. This award under § 1927 adequately compensates
Douglas for the extra expenses she incurred.
III.
Tennessee Code Annotated § 20-12-119
As a third ground for an award of attorney’s fees, Douglas argues that she is entitled to this
award under Tennessee Code Annotated § 20-12-119. (ECF No. 110-1 at PageID 845.) Section
20-12-119(c)(1) provides:
[I]n a civil proceeding, where a trial court grants a motion to dismiss pursuant to
Rule 12 of the Tennessee Rules of Civil Procedure for failure to state a claim upon
which relief may be granted, the court shall award the party or parties against whom
the dismissed claims were pending at the time the successful motion to dismiss was
granted the costs and reasonable and necessary attorney’s fees incurred in the
proceedings as a consequence of the dismissed claims by that party or parties. The
awarded costs and fees shall be paid by the party or parties whose claim or claims
were dismissed as a result of the granted motion to dismiss.
Tenn. Code Ann. § 20-12-119(c)(1). Even so, this statute does not apply because it is procedural
and does not apply in federal court. See J-Line Pump Co., Inc. v. Chand, 2014 WL 12626361, at
2
$78,123.89 (-) $25,000 = $53,123.89 less 25% ($13,280.97) = $39,842.92.
“A sanctioned attorney is thus required to personally satisfy the excess costs attributable to h[er]
misconduct.” Red Carpet, 465 F.3d at 646.
3
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*1–2 (W.D. Tenn. Sept. 19, 2014) (“Section 20-12-119 is procedural for Erie purposes and does not
apply to this case.”). And the statute states that it applies when the court grants a motion to dismiss
under “Rule 12 of the Tennessee Rules of Civil Procedure;” not Rule 12 of the Federal Rules of
Civil Procedure. See id. Section 20-12-119 does not apply.
IV.
Tennessee Code Annotated § 29-20-113
Douglas next moves for an award of fees and expenses under Tennessee Code Annotated §
29-20-113 which states:
[I]f a claim is filed with a Tennessee or federal court . . . against an employee of the
state or of a governmental entity of the state in the person’s individual capacity, and
the claim arises from actions or omissions of the employee acting in an official
capacity or under color of law, and that employee prevails in the proceeding as
provided in this section, then the court or other judicial body on motion shall award
reasonable attorneys’ fees and costs incurred by the employee in defending the
claim filed against the employee.
Tenn. Code Ann. § 29-20-113(a). (See ECF No. 112 at PageID 863.) The inclusion of claims
against the employee in their official capacity does not preclude an award under the statute for those
claims brought against the defendant in his or her individual capacity. Tenn. Code Ann. § 29-20113(c).
A.
Application of State Law Fee-Shifting Statutes
To what claims would this fee-shifting statute apply? “Federal Courts must generally apply
state law regarding attorney fees to a state law claim pendent to a federal claim.” Shimman v. Int’l
Union of Operating Engineers, Local 18, 744 F.2d 1226, 1237 n.17 (6th Cir. 1984) (citing Alyseka
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 259 n.31 (1975)). Under Erie, “[f]ederal
courts sitting in diversity . . . will [customarily] apply state ‘fee-shifting rules that embody a
substantive policy, such as a statute which permits a prevailing party in certain classes of litigation
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to recover fees.’” Degussa Admixtures, Inc. v. Burnett, 277 F. App’x 530, 532 (6th Cir. 2008)
(quoting Chambers v. NASCO, Inc., 501 U.S. 32, 52 (1991)). That said, the state statute would not
be applied when it interferes with a valid federal statute or court rule. Chambers, 501 U.S. at 52.
Put simply, Tennessee Code Annotated § 29-20-113 will be applied here only if it reflects a
substantive policy of the State and does not interfere with a valid federal statute or court rule.
Here, § 29-20-113 permits persons sued in their individual capacity, for claims arising out of
acts or omissions taken while the person was acting under color of state law, and who have
prevailed in the suit to recover reasonable attorney’s fees. Thus, it permits a particular class of
litigants to recover fees. And the statute embodies a substantive policy of the state to prevent
meritless litigation against state employees in their individual capacities. Further this statute allows
for the award of attorney’s fees based on the success of the underlying merits of the claim, not
“based upon the conduct of the parties and the attorneys in filing and litigating the claim.” Cf. First
Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 529 (6th Cir. 2002) (stating that
an Ohio statute allowing for the award of attorney’s fees based on the frivolous conduct of a party
was procedural and did not apply under Erie). The Court finds, therefore, that the fee-shifting
statute should be applied to the state law claims brought against Douglas in her individual capacity.
B.
Fee Award Under State Law
Plaintiffs brought four state law claims against Douglas in her individual capacity for acts
she allegedly performed in her official capacity as supervisor at SCS. (See ECF No. 37 at PageID
404–05, 411–12.) These four claims amount to twenty percent of the claims brought against
Douglas.4 Consequently, the Court will award an amount equal to twenty percent of the overall
4
Plaintiffs brought ten claims against Douglas in both her official and individual capacities. (See
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reasonable fees to Douglas under this statute. This amounts to $7,968.58.5 The Court thus finds
that Plaintiffs are liable to Douglas for $7,968.58 under Tennessee Code Annotated § 29-20-113(a).
C.
Plaintiff’s Challenge to Constitutionality of State Statute
Plaintiffs’ have now moved to challenge the constitutionality of § 29-20-113, or in the
alternative, for the Court to certify this question to the Tennessee Supreme Court. (ECF Nos. 152
& 158.) Plaintiffs argue that the application of this statute violates the Supremacy Clause of Article
VI of the United States Constitution and the Due Process Clause of the Fourteenth Amendment to
the United States Constitution. (ECF No. 158 at PageID 1212.)
It has long been a principal of federal courts that constitutional issues should be avoided
when a nonconstitutional ground exists to decide an issue. Firestone v. Galbreath, 976 F.2d 279,
285–86 (6th Cir. 1992) (“Deciding constitutional issues only after considering and rejecting
nonconstitutional ground for the decision is a ‘fundamental rule of judicial restraint.’”) (quoting
Three Affiliated Tribes of the Fort Berthold Reservation v. World Engineering, 467 U.S. 138, 157
(1984)). Here, Douglas moved for attorney’s fees and expenses on May 16, 2018. (ECF Nos. 110
& 112.) Local Rule 7.2(a)(2) states that a party has fourteen days to respond after being served
with a motion. Plaintiffs thus had until May 30, 2018, to respond to Douglas’ motion for fees and
expenses. See Fed. R. Civ. P. 6(a)(1). The Plaintiffs filed a timely response but failed to address
the application or constitutionality of the state laws at issue. (See ECF No. 118.) In fact, Plaintiffs
ECF No. 37.) Each claim constitutes two separate claims because they were brought against
Douglas in her two separate capacities; resulting in twenty separate claims. So the four state law
claims amount to twenty percent of all claims against Douglas.
5
The Court finds that the final lodestar figure, $39,842.92, is also reasonable under Tennessee law
because of the length of litigation, the prevailing market rate, the written agreement establishing a
fixed fee, and the outcome of the litigation. Thus, $39,842.92 (final lodestar figure) x 20% =
$7,968.58.
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did not dispute the constitutionality of § 29-20-113 until six months after the Motion was filed.
(See ECF No. 152.) This was only after the Court held a hearing to address the pending motion for
fees and expenses and allowed Plaintiffs to respond to the reasonableness of the award sought by
Douglas. (See ECF No. 148, Minute Entry). The Court finds that Plaintiffs have waived their
opportunity to challenge the constitutionality of Tennessee Code Annotated § 29-20-113.6
The Court has also restrained its application of the state fee-shifting statute to claims arising
under state law and adjudicated under supplemental jurisdiction. The Court’s ruling does not
supplement or obstruct the purposes of 42 U.S.C. § 1988. For that reason, no preemption issue
results.7 And failure to apply the state statute could result in forum shopping. Thus, Plaintiffs’
Motion to Certify the Constitutionality of § 29-20-113 is DENIED.
CONCLUSION
For these reasons, the Court GRANTS IN PART AND DENIES IN PART Douglas’ Motion
for Attorney’s Fees and Expenses. Attorneys Valerie Vie and Lucinda Jones are personally liable
to Douglas for $39,842.92 under 28 U.S.C. § 1927, and Plaintiffs are liable to Douglas for
$7,968.58 under Tennessee Code Annotated § 29-20-113(a). The total fees awarded are
$47,811.50.
Plaintiffs’ Motion to Certify the Constitutionality of Tennessee Code Annotated § 29-20113(a) is DENIED.
6
And the Court has given Plaintiffs adequate time to make their arguments about attorney’s fees.
State laws may be preempted by conflicting federal laws either expressly or impliedly. Fulgenzi
v. PLIVA, Inc., 711 F.3d 578, 583 (6th Cir. 2013). Implied preemption exists where “pervasive
federal regulation preclude[s] enforcement of state laws on the same subject . . . [or] state law
actually conflicts with federal law if either 1) compliance with both is impossible, or 2) the state
requirement is an obstacle to the full purposes and objectives of Congress.” Id. at 584 (internal
quotations and citations omitted) (alteration in original).
7
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SO ORDERED, this 7th day of February, 2019.
s/Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE
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