McCully v. Stephenville Independent School District et al
Filing
85
Memorandum Opinion and Order...TASB have and recover from McCully and Izen jointly and severally, $6,253.00 as attorney's fees incurred by TASB on behalf of the Carters in connection with this action. (Ordered by Judge John McBryde on 12/23/2013) (wrb)
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NORTHERN DI
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KEVIN MCCULLY
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STEPHENVILLE INDEPENDENT SCHOOL 5
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Defendant .
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NO . 4 :13 -CV -702 'A
-
MEMORANDUM OPINION
and
ORD ER
The court has concluded that the motion for attorney 's fees
('the motion') filed in the above-captioned action by former
'
'
defendants , William Joe Carter and Rachel Carter, ('the Carters')
'
'
should be granted .
1.
The Motion
The motion was filed within the time allowed by Rule 54 ( 1
2).
The request for recovery of attorney 's fees was properly made
under the authority of Rule 54 ( 2) because the substantive 1aw
d)(
did not require that the fees be proved at trial as an element of
damages . The Carters requested in their motion that attorney 's
fees be awarded to them against Kevin Mccully ('
'McCully' Who
'),
l'efnaj dg n a t pli if'cam a i tteCatr wa e ee No mbe 1 ,2 3.
'h i lu me t s o antfs li gans h res s ntrd vv r 3 01
T
The moton wasfl November27,201
i
ied
3.
j
t
initiated this action Dro se, as next friend for his daughters,
and Afton Jane Izen (
nlzen'
'), the attorney who was representing
Mccully behind the scenes when the action Was filed and on and
off the record for a period of time thereafter . The motion
alleges in its introductory paragraph that the Carters are
seeking recovery of attorney 's fees from 'Plaintiff or ,
'
alternatively, from Plaintiff's counsel Afton Izen ,' Mot. at
'
but the text of the motion suggests that the Carters are
requesting recovery of attorney 's fees from Mccully and Izen ,
jointly and severally. Counsel for the Carters clarified at the
December 10, 2013 hearing on the motion that the goal of the
motion was to obtain recovery of attorney 's fees against Mccully
and Izen, jointly and severally, if permitted by law.
The recovery sought by the motion is based on the provisions
of 42 U . .
S C.
1988(
b), 28 U.S.
C.
1927, and the court 's
inherent authority .
II .
Pertinent Legal Authorities
A.
42 U .S.C . 5 1988 (
b)
Section 1988( of Title 42 reads, in pertinent part, as
b)
follows :
In any action or proceeding to enforce a provision
of . . . title IX of Public Law 92-318 ( U .
20 S.C. 1681
et seq.l,
the court, in its discretion, may allow
2
the prevailing party
as part of the costs .
a reasonable attorney 's fee
An award of attorney 's fees under 51988 ( can be made to a
b)
defendant if the plaintiff's claim Was nfrivolous, unreasonable,
or groundlessz' or when nthe plaintiff continued to litigate
'
after it clearly became so . ' Christianburq Garment Co . v . EEOC,
'
434 U.S. 412, 422 (
1998). There does not have to be a finding of
bad faith for an award of attorney 's fees to be proper under
5 1988(
b), but uif plaintiff is found to have bbought or
continued such a claim in bad faith , there will be even stronger
basis for charging him w ith attorney 's fees incurred in the
defense .'
'
Id .
The Fifth Circu it has defined three factors that are
important to consider in evaluating whether a claim was frivolous
-
-
first, whether the plaintiff established a Drima facie case,
second, whether the defendant offered to settle the case, and,
third, whether the district court dismissed the ca:e or held a
full-blown trial . see United states v . Miss ., 92l F .
2d 604 , 609
(
5th dir. 1991); see also Myers v . City of W. Monroe, 211 F.3d
289 (
5th Cir. 2000)
Section 1988 does not authorize the award of attorney's fees
against a plaintiff's attorney .
Brown v . Borough of
Chambersburq , 903 F .2d 274 , 277 ( Cir. 1990). HoWever, in
3d
Lewis v . Brown & Root , Inc w the Fifth Circuit recognized that
the same conduct that authorizes a fee award aga inst the
.
'
plaintiff under a statute comparable to 5 1988 ( would support a
b)
joint award of attorney's fees against the plaintiff and his
counsel, with 28 U . . . 5 1927 supporting the aWard against
S C
counsel. 711 F.2d 1287, 1291-92 (
5th Cir . 1983), Clarified on
reconsideration, 722 F. 209 (
2d
5th Cir. 1984).
B.
28 U .S .C . 5 1927
Section 1927 of Title 28 reads as follows :
Any attorney or other person admitted to conduct
cases in any court of the United States or any
Territory thereof who so multiplies the proceedings in
any case unreasonably and vexatiously may be required
by the court to satisfy personally the excess costs,
expenses, and attorneys' fees reasonably incurred
because of such conduct .
The Fifth Circuit has not made a ruling as to whether a pro
se p laintiff can be sanctioned under the authority of j 1927 .
2
In Waqes v . I. .
R S., 9l5 F. 1230, 1235-36 (
2d
9th Cir. 1990), the
znconss e r ulshavebeen r hed by dit itcourt w ihi t Fit Cicui.l Alen v.
l
it nt es t
eac
src
s t n he fh r t n l
Tr v s No. 0 CV- 3 - , 07W L 1 89 2 ( D. x. ul 1 ,2 ) t dititc ur a o e
a i, 3:6- 1 6lM 20
9 59 N. Te J y 0 007 ,he src o t d ptd
t c ncu ino ama itaej get tapr s ltga tc n tbesncine u rt a tort o
he o lso f gsrt ud ha o e ii n a no a to d nde he uh iy f
j 1 27.l c ta t i Swie v. xa , SA- - 9 FB ( , 08W L 271 75 a *34 ( .
9 n onr s,n n v Te s No. 06CA-41 NN) 20
3 6, t - W D.
Te J y3, 08, ma srt ud noe t s ia ngj rs ci sa t whehe aoos lia t
x.ul 20 )a gitaej ge td he plt mo uiditon s o t r r e i g n
t
ca besa i
n
nctoned under1927 and t tt Fit Cicui hasye t r ol t isue,wih t r ul t ti
ha he fh r t
t o es ve he s
t he es t ha t
wa unce ra t wheh rt mo n pa t wa e ildt a t n y' f e u rj 1 27.Bu ,he
s la 's o te he vig ry s ntte o tor e s e s nde 9
tt
ma srt j dg we o t c cud t t(nlvet ls at e sfe ma beas sda ai tapo
gitae u e nt n o on l e ha E e rhees tonzy' e s y sese g ns r
l
s ltga wh nt ltga ti s ownt ha ep s e ltg to i b d f t ' L- a * Th dititc u t
e ii nt e he ii n s h
o v uru d iia in n a aih. d t 3. e src o r
' a
a pe t ma itaej gesc ncuinsa he'e o n to t tal re sfe bea re
do td he gsrt ud ' o lso nd lrc mme dain ha ton y' e s wad d
agai tt pl ntf . Or AcceptngM e or
ns he ai if der
i
m andum and Rec
omm enda i oft Unied St es
ton he t
at
M agit a eJudge,Doc.1 Ci lA c i N o.SA- CA- FB.
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26, vi ton
06- 9414
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Ninth Circuit held thqt 5 1927 sanctions may be imposed upon a
Dro se plaintiff . The Second Circuit held to the contrary in
Sassower v . Field, 973 F. 75, 80 ( Cir. 1992). The court is
2d
2d
of the belief that Congress must have intended to inèlude a Dro
qq litigant within the term nother person admitted to conduct
cases in any court of the United States .' A Dro se litigant is a
'
person who is admitted , in the sense that he is permitted, to
conduct cases in any court of the United States . To interpret
the statute otherwise would be to attribute to Congress serious
oversight in their drafting of 5 1927 because there is no logical
reason why a pro se litigant would not be included within the
scope of the statute. The court agrees with the Ninth Circuit
that the sanctioning power of 5 1927 extends to a Dro se
litigant .
3
The Fifth Circuit has concluded that for a motion under
î 1927 to be successful, there must be evidence of bad faith,
improper motive , or reckless disregard of the duty owed to the
court .
See Edwards v . General Motors CorD ., 153 F .3d 242, 246
3n W eser Fi i' M kt .. l . Blke n, 4: 1M C- 20A, 001W L 3 641 ( D.
1
t n delt
v
a nc v. a ma No. 0 - 00 - 2
46 65 N.
Te J ne26, 01,hi c r ma t sae ntta d e to 1 27onl a ist a t n ysa do s
x. u
20 ) t s ou t de he ttme h t ç c in 9
s
y pple o tor e nd e
t
ocusi
t
no a yt cin so a y ohe no lwy r . L= l t cas t cour wasnotf ng on whehera
t ppl o le t r n t r n-a e s' d n hat e, he
'
Dr s ltga twa s nci a eu e j 1 .No t tt ec ur ha f c e ont tis ,hec r ha
o e ii n s a ton bl nd r 927 w ha h o t s o us d ha sue t ou t s
c cud dt a j 1 27a i t p o s I ia t .
on l e h t 9 ppl o r e i g n s
es
t
.
5
(
5th Cir. 1998); see also Inqram v . Glast, Phillips & Murray, l96
F. App' 232 (
x
5th Cir. 2006).
Though 5 1927 speaks of vexatioùs multiplication of
litigation , the section can support an award of attorney 's fees
for an entire course of proceeding if the case never should have
been brought in the first place . See Lewis , 7l1 F .
2d at 1292 ;
see also Browninq v . Kramer, 931 F . 340, 345 (
2d
5th Cir. 1991)
(
indicating that nwhen the entire course of proceedings were
unwarranted and should never have been commenced nor persisted
in' the entire financial burden of an action's defense can be
'
shifted to the plàintiff under 5 1927).
C.
The Court's Inherent Power
The Supreme Court has recognized that federal courts have
'
the inherent power to impose attorney 's fees as a sanction for
bad faith litigation conduct . Chambers v . NASCO, Inc., 501 U.S.
32 # 47 (
1991). A sanction pursuant to the court's inherent
powers should be imposed only if necessary to preserve the
authority of the court , and the sanction must employ nthe least
possjb1e yöwer adëquate to the pur
pose to be achièved., uàyural
,
Gas Pipeline Co . of Am . v . Energy Gatherinq , Inc., 86 F .!d 464 ,
467 (
5th Cir. 1996); see also Crenshaw v . General Dynamics CorD .,
940 F. 125, 129 (
2d
5th Cir. 1991) (
holding a federal court may
6
aWard attorney 's fees to a successful litigant when the opponent
Commenced or conducted the action in bad faith , vexatiously , or
for the purpose of harassment , but the court must make specific
findings as to the frivolousness of the suit before making such
an award). In Roadway Express , Inc . v . Piper , 447 U .S . 752 , 765
-
(
1980), the Supreme Court recognized that, in the narrowly
defined circumstances when exercise of the court's inherent power
is appropriate, ufederal courts have inherent power to assess
attorney 's fees against counsel .' The language of Roadwav
'
Express was quoted with approval by the Supreme Court in
'
Chae ers , 501 U .S . at 45 .
III .
Analy sis
A.
Findings of Fact
The court makes the following findings of fact based on the
contents of the record in this action and the evidence received
by the court at the December l0, 2013 hearing on the motion:
This action was initiated on August 27, 2013, by Mccully pro
#4 , as nekt fbiend for his daughters, C . Mccully and X . Mccully.
He hired Izen to be the attorney for him and his daughters before
the complaint was filed and had her assistance in legal matters
leading up to the preparation and filing of the comp laint .
7
Mccully prepared a draft of the complaint and provided it to Izen
for review and refinement before filing . He is the author of
paragraph 37 of the complaint, which contains the sole
allegations of the complaint against the Carters . As actually
filed, the complaint was prepared by Izen for Mccully's
signature . Mccully signed the complaint on August 27, 2013.
Mccully is well-educated and appears to be of above-average
intelligence. His writings suggest that he has legal skills. He
had done significant legal research concerning the meaning and
applicability of the provisions of Title IX , and had the benefit
of Izen's expertise on Title IX, before he filed the complaint.
i
Izen knew , and Mccully knew or should have known , when Izen and
'
7
Mccully cooperated in the preparation of the complaint that a
,
retaliation claim could not be brought against the Carters under
Title IX . The complaint was filed with that knowledge in mind.
The allegations in the complaint against the Carters were
frivolous , unreasonable , and groundless .
lhe complaint, to the extent that it asserted a claim
'
agaihst the Carters , was prepared and filed in bad faith , w ith
impropèr motive , and in reckless disregard of the duty owed by a
litigant to the court not to include in a pleading a claim known
b? the litigant to be unfounded legally or factually . When
8
Mccully prepared paragraph 37 of the complaint , and when he filed
the complaint , he knew or should have known that the claim made
aîainst the Carters was legally and factually unsound ; and when
Izen prepared the comp laint for filing , she knew that the claim
was factually and legally unsound , and she knew the complaint was
going to be filed containing those allegations. The claim
against the Carters in the complaint was unwarranted , and the
claim never should have been commenced , and certainly should not
have been pursued .
The allegations in the complaint against the Carters were
C
intended by Mccully and Izen to be viewed to be a retaliation
è
claim under Title IX . By making that retaliation claim under
#
Title IX against the Carters , Mccully and Izen were able to
create the appearance, at least superficially, that a viable
Title IX retaliation claim existed against Stephenville
Independent School District (
USISD'). The retaliation claim
'
asserted against SISD in paragraph 38 of the complaint was
predicated in its entirety on the factual allegations made
against the Cartets in paragraph 37 of the complaint . An
improper motive Mccully and Izen had in including in the
complaint the allegati
ons against tie Carters was to create the
appearance of a viable Title IX retaliation claim against SISD .
9
The suggestion made by the allegations in paragraph 37 of
.
.
(' '
'
.
.
,
.
. .
,
.
the complaint that the p leader had reliable information that the
Carters had inappropriately used their positions wiçh SISD to
cause M . Mccully not to be included on a basketball team that
used an SISD gymnasium was not based on information upon which
any reasonable person would make the assertions that were made in
paragraph 37 . Nor would a reasonable person conclude that the
Carters' position with SISD had anything to do with whether
Mccully 's daughter wou ld be a member of the basketball team
mentioned in paragraph 37 .
on septemùer 27, 2013, the carters filed a motion to dis ss
mi
;
,
the complaint for failure to state a claim against them upon
Which relief could be granted . One of the grounds of the motion
wàs that the complaint did not allege a valid Title IX
retaliation claim against the Carters because as a matter of law
Title IX does not provide a remedy against individual defendants .
Mccully and Izen were aware in September 2013 that the Carters
took such a position in their motion to dismiss. Rather than to
acknowledge that the Carters were correct , and thàt the claim
against the Carters should be dismissed, three motions were f iled
bY Mccully asking for an extension of time for Mccully to respond
to the Carters' motion to dismiss . The first motion to extend
10
2
!
:
time was filed over the signature of Izen on October l8, 2013.
That motion was granted . The second motion to extend time Was
filed over the signature of Izen on October 24 , 2013 . Again , the
motion was granted . The third motion to extend time was filed
over the signature of Izen on October 30, 2013. It Was denied
after the Carters responded to the motion . None of those motions
for extension of time contained any acknowledgment or concession
that the claim asserted against the Carters in the complaint was
without merit . When each of those motions was filed , Mccully and
Izen :0th knew that the claim in the complaint against the
t
'
carters was groundless .
t
Even though Mccully and Izen knew that the claim made
)
against the Carters was frivolous and unfounded / they continued
'
to pursue the litigation against thè Carters in bad faith and for
:
improper purposes. They used their allegations of retaliation
against the carters in support of their response in opposition to
a mo tion to dismiss for failure to state a claim filed by SISD on
September 23 , 2013 . Mccully filed his response in opposition
över the signature of Izin on October 17, 2013 , which was the day
before Mccully sought his first extension of time for response to
the Carters' motion to dismiss . In Mccully 's response to SISD 'S
motion to dismiss , he urged that SISD 'S motion be denied as to
11
the retaliqtiqn claim, asserting that nE
pllaintiffs are only
requ ired to present evidence that there is a genuine issue of
material fact fo: resolution by the trier of fact' and
'
nl
dlefendant has not controverted Plaintiff's evidence, and
therefore, Defendant's Motion to Dismiss should be denied.'
'
Pls.' Resp. in Opp ' to Def.'s Mot. to Dismiss at 15. The only
n
uev idence' to which Mccully and Izen could have been referring
'
were the statements of purported facts concerning the Carters
that were alleged in paragraph 37 of the complaint . In other
words, Mccully and Izen were relying on the existence of
.
allegationà against the Carters that were wrongfully ,
frivolously , and spuriously put in the complaint as a reason why
'
thè court should not dism iss Mccully 's retaliation claim against
SISD .
Mccully never filed a response to the Carters ' motion to
dismiss . The Carters' motion to dismiss and the motion to
dismiss of SISD as to the retaliation count of the complaint were
granted by Memorandum Opinion and Order signed November 13, 2013 .
Of interest , coincidentally on that same date Mccully filed a
motion for leave to file an amended complaint in which he
abandoned his clait against the Carters and his retaliation claim
against SISD , thus providing rather conv incing ev idence of
12
Mccully 's reliahce on his allegations against the Carters as
support for the retaliation claim against SISD.
The proposed amended complaint tendered to the court with
the November 13, 2013 motion for leave illustrates the harassing
nature of Mccully 's lawsuit generally . If his motion for leave
had been granted , the amended complaint would have constituted an
abandonment of Mccully 's claim against the Carters and of his
Title IX retaliation claim against SISD and would have added as
defendants the superintendent of SISD in his official capacity
and Does 1-50 .
The proposed amended complaint alleged that wh ile
Mccully Qas 'iénorant öf the true names ànd capacities of Does 1'
q
5Q, E
hel believe ( them to be employees of Stephenville
d1
j
Independent School District or members of the Stephenville
(
Independent School District Board of Trustees .' Proposed Am .
'
Compl. tendered Nov. 13, 2013, at 4 ! 12. He aile
ged no s
pecific
facts against any of the fifty Does .
The court is satisfied , and finds , that another motive of
Mccully in causing the allegations against the Carters to be put
in the complaint was to harass the Carters because of a belief on
Mccully 's part that one or b0th of the Carters had something to
do wi whether one of iis daughters Woul partici
th
d
pate i a
n
privately organized basketball team that Mccully alleged Was
lg
making use of an SISD gym during the summer months of 2013 k The
testimony Mccully gave at tie hearing on the reasons for suing
the Carters was not credible other than to convey to the court
that Mccully wanted to punish the Carters for sömething ,
presumably because of a lack of participation by his daughter in
the privately organized basketball team .
The court considers noteworthy that the allegations in the
Complaint were supported by an affidavit of Mccully , which was
attached to the complaint, by which he swore under oath to the
truthfulness of certain of the allegations in the comp laint but
not his allegations against the Carters . If he thought his
,
allegations against the Carters were factually based , presumably
he would have included in his affidavit a verification under oath
è
of those allegations . Moreover , nowhere in the large number of
attachments to the complaint is there any mention of anything
either of the Carters did or failed to do . The appearance is,
and the court finds , that whatever message Mccully sought to
convey by the allegations contained in paragraph 37 of the
complaint against the Carters was created by Mccully o?t of whole
:10th .
14
To the extent any of the foregoing findings of fact are more
appyopriately considered to be conclusions of law , they are to be
so viewed .
B.
Conclusions of Law
The Carters are entitled to recover attorney 's fees from
Mccully in a reasonable amount under the authority of 42 U . . . 5
S C
l988( for all of the work their attorneys did in resisting the
b)
claim asserted against the Carters by Mccully , starting with the
first work the attorney did on August 4 , 2013, going through the
last item shown on their Exhibit 3 time sheet, which is a
November 26, 2013 item for completing the motion to recover
k
t
attorney 's fees .
4
From the very beginning , when this action was
.
initiated on August 27 , 2013 , by the filing of the complaint, the
claim asserted by Mccully, on behalf of his daughters, against
the C#rters was frivolous, unreasonable, and groundless ; and
thereafter Mccully continued to litigate the claim when it
clearly had those characteristics . The pursuit by Mccully
against the Carters of the claim that was made in the original
comp laint was brought , asserted , and pursued in bad faith .
4-ad t Carer s
ll he t s oughtt r
o ecove f tme t y devot aferNovem ber26, 2013, o t r
r or i he
ed t
t hei
r ques f r
e t or ecover ofa t ne sf , t y woul ha been entted t r
y tor y' ees he
d ve
il o ecoverf t tm easwel.
or hat i
l
However i muc ast Cart sha notpr ded any i or a i ast addii tme f whi t y
, nas h he
er ve
ovi
nf m ton o
tonal i or ch he
mi bem a ng acl m,t cour i notc
ght
ki
ai he
ts
oncem i is fw ih s h addii tm e.
ng t el t uc
tonal i
15
Plaintiffs failed to establish a prima facie case against the
Carters . The Carters did not offer to settle the case because it
would have been unreasonable for them to do so inasmuch as a
matter of law they clearly had no liability under the allegations
against them in the complaint. The claim against the Carters was
dismissed without there being a need for a full-blown trial.
Therefore, the Carters are entitled to an award of attorney 's
fees under 5 l988( for all the attorney work shown on the
b)
Carter Defendants' Exhibit 3. A11 of that work was necessary for
the provision of a defense to the frivolous, unreasonable , and
(
groûndless claim brought by Mccully against the Carters .
Mccully and Izen :0th have liability to make payment to the
Carters under 28 U .S .C . j 1927 for the attorney 's fees reasonably
i
incurred in the defense of the Carters in this action , from the
very beginning through the work done by the attorneys
representing the Carters on November 26 , 2013 . The Very filing
of this action was unreasonable and vexatious on the part of
Mçcully and Izen , and all attorney 's fees incurred by the Carters
i the defense of the actl constituted excess attorney' fees
n
on
s
reasonably incurred because of such unreasonable and vexatious
conduct . From the time the claim was asserted againàt the
Carters when this action was filed through the time when the
16
court dismissed the action as to the Carters, the action was
being pursued by Mccully and Izen in bad faith, with improper
motive, and with reckless disregard of the duty owed by Mccully
and Izen to the court not to present and pursue a frivolous ,
unreasonable, and vexatious claim . The claim in the complaint
against the Carters should never have been brought in the first
Place, and should not thereafter have been pursued . The entire
course of the proceedings against the Carters was unwarranted .
Therefore , the entire financial burden of the defense provided to
the Carters should be borne by Mccully and Izen , both of whom
)
were responsible for the filing and pursuit of the proceedings.
An awàrd to the cazters for attorney's fees incurred by them
in the defense of the claim made by Mccully against them in this
action also would be appropriate under the court's inherent
pokers were it not for the fact that attorney 's fees can be
awarded in favor of the Carters against Mccully under both
5 1988 ( and 5 1927 and against Izen uùder 5 1927 . Because an
b)
appropriate award can be made under those two statutory
Provisions, a sanction pursuant to the inherent pokers of the
court is not necessary to preserve the authority of the court .
For that reason , and only for that reason , the court is not
imposing an award of attorney's fees as sanctions against either
17
Mccully or Izen under the court's inherent power . Were it not
for the availability of other avenues for making an award of
attorney's fees in favor of the Carters against Mccully and Izen,
the court would make an award against them, jointly and
severally , as sanctions under the court 's inherent powers .
C.
The Amount to be Awarded
The parties stipulated that the total dollar amount of
$6,
253.00, the total of the fee charges shown on the December 23,
2013 Carter Defendants' Exhibit 3, is reasonable for the work
reflected by the exhibit. They left for the court to decide
whether the work represented by the fee charges Was necessary for
the defense of the Carters as to the claim made against them by
Mecully . The court finds that all of the work shown on the
exhibit throùgh the November 14 , 2013 entry pertaining to receipt
of the memorandum opinion and order and final judgment dismissing
the claim against the Carters is work that necessarily was done
by the attorney s in the defense of the claim made by Mccully
against the Carters in the complaint he filed on August 27, 2013;
and, the court finds that the remaining work shown on the exhibit
was necessàry for the preparation of the request by the Carters
for recovery of attorney's fees agàinst Mccully and Izen . The
law seems to be established that an award of attorney 's fees can
18
include time spent by the attorney for the prevailing defendant
in preparing a motion for attorney 's fees. See Cruz v . Hauck ,
762 F.2d 1230, 1233 (
5th Cir. 1985); Johnson v. Missw 606 F.2d
635, 638 (
5th Cir. 1979); John G . Raymond, Inc. v . Blair, No.
CIV . A . 09-5507, 2012 WL 5398568 at *2 ( D . La. NoV . 2, 2012).
E.
The court finds that the fees shown on the Carter
Defendants ' Exhibit 3 for work related to preparation of the
motion for attorney 's fees (
the second November 14, 2013 entry
through the November 26, 2013 entry) accurately reflect work
necessary to the preparation of the motion of the Carters for
recovery of attorney 's fees .
The court accepts the stipulation of the parties that
(
$6,253. is a reasonable amount for the attorney work shown on
00
the Carter Defendants' Exhibit 3 . The court would note that the
per hour rates shown on that exhib it are less than what the court
would expect attorneys w ith the qualifications and expertise of
defense counsel for the Carters to charge, perhaps as much as $75
to $125 less than what the court has seen in the last few years
that attorneys with similar quàlifications and experience in this
area charge for litigation work .
Therefore, thè court concludes that $6,253. is a proper
00
amount to award as attorney 's fees in favor of the Carters
19
against Mccully and Izen . In reaching such conclusion, the court
has appropriately cqnsidered all factors the court should
consider in determining the reasonableness of the fee charges
upon which the award is based and the necessity for the
accomplishment of the work included in the award .
D.
The Attorney 's Fee Award is for the Benefit of TASB
-
The evidence at the hearing showed that Texas Association of
School Boards Risk Management Fund CA
TASB' hired the attorneys
')
who provided the Carters a defense in this action and paid their
fees . Thus, TA SB is subrogated to the claim of the Carters for a
E
fee award and should bè the ultimate beneficiary of any such
award . on December 17, 2013 , TASB filed a document titled u
Texas
Association of School Boards Risk Management Fund's Motion for
Joinder as a Defendant for the Limited Purpose of Pursuing Claim
of Attorney's Fees and Ratification.' The court hereby grants
'
such motiùn .
The court , having granted such motion, considers TASB to be
a party to the action for the limited purpose of enjoying the
benefit ok th8 a
ward of attorne s fees in f
y'
avor of the Carters
a:ainst Mccully and Izen . The court is making the award directly
to TASB so that the funds when paid will go directly to TA SB
instead of being funneled through the Carters to TASB .
'
.
20
TASB has informed the court in its motion for joinder that
it ratifies the request of the Carters contained in the motion of
the Carters for an award of attorney 's fees, and the court
determines that TASB is judicially bound by all findings,
conclusions , and rulings made by the court in response to such
motion. To the extent necessary to accomplish the objectives
expressed under this subheading of this memorandum opinion and
order, the court considers that TASB has been joined and is a
party to this action .
IV .
Order
For the reasons stated above ,
The court ORDERS that TASB havé and recover from Mccully and
Izen, joi
ntly and se
verally, $6,
253. as attorne
00
y's fees
incurred by TASB on behalf of the Carters in connection with this
action .
'.
SIGNED December 23 , 20 13 .
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