Lyde v. The Boeing (U.S.) Company

Filing 17

MEMORANDUM OPINION AND ORDER granting 15 MOTION to Dismiss with Prejudice, denying 16 Request for Attorneys' Fees (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

PAM LYDE,

§
§
§
§
§
§
§
§
§
§

Plaintiff,

v.
THE BOEING COMPANY,
Defendant.

September 27, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3293

MEMORANDUM OPINION AND ORDER

Plaintiff,
Boeing Company,

Pam Lyde,

brought

suit

against

Defendant,

for gender discrimination under Title VII of the

Civil Rights Act of 1964,

~s

amended, and for age discrimination

under the Age Discrimination in Employment Act of 1967.
has filed a Motion to Dismiss with Prejudice.
oppose

the

The

dismissal

but

requests

Plaintiff

Defendant does not

attorneys'

fees

for

costs

incurred in preparing a motion for summary judgment.

I. Factual and Procedural Background
Plaintiff worked for Defendant

for approximately 25 years

before she was terminated from employment.

Plaintiff brought an

action for damages arising out of gender and age discrimination on
November 7,

1

2016. 1

On June 1, 2017, Defendant's counsel emailed

See Plaintiff Pam Lyde's Original Complaint, Docket Entry No.
1, pp. 7-8.

Plaintiff's counsel a copy of a July 18, 2014, Release of Waiver
Agreement between Plaintiff and Defendant and stated that under the
agreement
referenced

"Ms.

Lyde

lawsuit,

lacks
and

any

Boeing

basis

to

requests

dismiss her lawsuit with prejudice." 2

maintain
that

the

she

above-

immediately

The email further stated

"[i] f Ms. Lyde does not move to dismiss her lawsuit by Friday, June
2, 2017, Boeing will file an appropriate motion or pleading with
the

court

and will

seek

incurred in filing the mot ion. " 3

its

attorneys'

On June 6,

fees

2017,

and costs
Defendant's

counsel sent an email to Plaintiff's counsel asking if Plaintiff
was going to dismiss the action with prejudice. 4

On July 21, 2017,

Defendant filed a Motion for Summary Judgment seeking dismissal of
Plaintiff's lawsuit for the reasons stated in the June 1 email. 5
On July 31, 2017, Plaintiff's counsel emailed Defendant's counsel
asking if Defendant opposed a proposed motion to dismiss in which
Plaintiff requested that each side pays its own costs.

Defendant's

counsel replied that Plaintiff would have to reimburse Defendant
for the fees and expenses incurred in preparing its Motion for

2

See Defendant's Response to Plaintiff's Motion to Dismiss and
Request for Attorney's Fees, Docket Entry No. 16, Exhibit A.
3

Id.

4

See Defendant's Response to Plaintiff's Motion to Dismiss and
Request for Attorney's Fees, Docket Entry No. 16, Exhibit B.
5

See Defendant The Boeing
Judgment, Docket Entry No. 14.
-2-

Company's

Motion

for

Summary

Summary Judgment. 6

The next day Plaintiff filed its Motion to

Dismiss with Prejudice requesting that the parties bear their own
attorneys'
Response

fees,
to

costs,

and other expenses

Plaintiff's

Attorneys's Fees

Motion

to

incurred. 7

Dismiss

and

In its

Request

for

(Docket Entry No. 16) Defendant does not oppose

dismissal of Plaintiff's lawsuit with prejudice, but asks the Court
to award costs and attorneys' fees incurred in preparing and filing
its Motion for Summary Judgment pursuant to 28 U.S.C.

II.
Under 28 U.S.C.

§

§

1927.

Applicable Law

1927 ("Section 1927"), "[a]ny attorney

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•

because of such conduct."

28 U.S.C.

§

fees reasonably incurred
1927.

To find an attorney

multiplied proceedings "unreasonably" and "vexatiously" there must
"be evidence of bad faith,

improper motive, or reckless disregard

of

court."

the

duty

Mississippi,
Gamble Co.

owed
681 F.

v.

to

the

App'x 384,

Amway Corp.,

388

Payne

v.

(5th Cir.

280 F. 3d 519,

525

University of
2017);

S.

Proctor

(5th Cir.

&

2002);

Edwards v. General Motors Corp., 153 F.3d 242, 246 (5th Cir. 1998).

6

See Defendant's Response to Plaintiff's Motion to Dismiss and
Request for Attorney's Fees, Docket Entry No. 16, Exhibit C.
7

See Motion to Dismiss with Prejudice, Docket Entry No. 15.
-3-

The

Fifth Circuit

sanctions

construes

sparingly.

Section 1927

Lawyers

Title

Partners, L.P., 739 F.3d 848, 871-72,

strictly and applies

Ins.

Corp

v.

Doubletree

(5th Cir. 2014); Meadowbriar

Home for Children, Inc. v. Gunn, 81 F.3d 521, 535 (5th Cir. 1996);
Baulch v. Johns,

70 F.3d 813,

817

(5th Cir. 1995).

Section 1927

applies only to costs associated with "the persistent prosecution
of a meritless claim."
F.3d 237,

240

See, e.g., Walker v. City of Bogalusa, 168,

(5th Cir.

1999); Pease v.

Pakhoed Corp.,

980 F.2d

995, 1001 (5th Cir. 1993); Brewing v. Kramer, 931 F.2d 340, 345-46
(5th Cir.

1991);

Ponder v.

Wersant,17-cv-00537,

2017 WL 3923544

(S.D. Tex Sept. 5, 2017).
Courts

have

imposed

sanctions

under

Section 1927

when an

attorney made repeated filings despite warnings from the court or
in

other

National

instances
Ass'n.

of

of

excessive

Government

and

egregious
Inc.

Employees,

litigiousness.
v.

National

Federation of Federal Employees, 844 F.2d 216, 224 (5th Cir. 1988).
Sanctions

will

not

be

imposed

for

the

mere

attorney.

Baulch v. Johns, 70 F.3d 813, 817 (5th Cir. 1995); Hahn

v. City of Kenner, 1 F.Supp.2d 614, 617-18
III.
Defendant

argues

that

negligence

of

an

(E.D. La. 1998).

Analysis

an

award

of

attorneys'

fees

is

appropriate because Plaintiff waited until after Defendant filed
its Motion for Summary Judgment to respond to Defendant's initial
request that Plaintiff dismiss her lawsuit.

-4-

Because Plaintiff has

not provided any explanation for her failure to respond timely to
Defendant's request Defendant argues "Plaintiff's silence appears
to

have

been

a

calculated

decision

aimed

at

unnecessarily

increasing Defendant's costs." 8
Although the Court agrees that Plaintiff's counsel should have
moved to dismiss earlier, the Court does not find that this conduct
meets the standard to impose sanctions under Section 1927.
Rodriguez v.

IC System,

No.

(W.D. Tex. May 12, 2017).

16-cv-00186,

2017 WL 2105679,

See
at *4

In Rodriguez, the plaintiff waited until

the defendant filed its Motion for Summary Judgment, then filed his
Motion to Dismiss on the same day he filed his response to the
defendant's motion.

The court agreed that

the plaintiff

should have moved for dismissal before the defendant filed its
motion, but held that "Plaintiff's counsel was, at most, sluggish
in prosecuting this case.

[and]

that counsel's conduct did

not rise to the level of deserving sanctions under 28 U.S.C.
1927."

Id.

§

As in Rodriguez, here there is no evidence, other than

silence by the Plaintiff, that shows bad faith, improper motive, or
reckless disregard of the duty owed to the court.

The Court is not

persuaded that Plaintiff's delay in dismissing the case warrants
sanctions under Section 1927.

8

See Defendants' Response to Plaintiff's Motion to Dismiss and
Requests for Attorneys' Fees, Docket Entry No. 16, p. 3.
-5-

IV.

Conclusion

Because the Court concludes that Defendants are not entitled
to recover costs and fees under 28 U.S.C.

§

1927,

Defendant's

Request for attorneys' fees and costs is DENIED and Plaintiff's
Motion to Dismiss will be GRANTED.
SIGNED at Houston, Texas, on this 27th day of September,

2017.

LAKE
UNITED STATES DISTRICT JUDGE

-6-