Diedrich v. City of Newport News, Virginia et al

Filing 22

MEMORANDUM OPINION AND ORDER granting 14 Motion for Attorney Fees. Defendant is awarded attorney's fees in the amount of $10,260. Signed by District Judge Raymond A. Jackson and filed on 3/31/16. (tbro)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

JASON LEON DIEDRICH,

Plaintiff,

CIVIL ACTION NO. 4:15cv2

THE CITY OF NEWPORT NEWS,
VIRGINIA, et. al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants' Motion for Attorney's Fees. ECF No. 14. In addition to

their Motion, Defendants have filed a Memorandum in Support, ECF No. 15, and an Affidavit of

Attorney Darlene P. Bradberry. Plaintiff has filed a Memorandum in Opposition, ECF No. 16,
and Defendants have filed a Rebuttal Brief, ECF No. 18. Defendants have also requested a

hearing on their Motion. ECF No. 20. The Court has reviewed the Motion, the filings of the
parties, and has recalled its extensive knowledge of this case and the associated cases. The
Motion is now ripe and a hearing would not aid in the adjudicative process. For the reasons
stated below, the Motion is GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY

On January 12, 2015, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 against
Defendants alleging that Defendants deprived Plaintiff of his liberty interests and property
interests in violation of the United States Constitution. ECF No. 1. Plaintiff additionally brought
state law claims for Negligent Infliction of Emotional Distress. Judgement was requested in the
1

amount of $10,000,000. Plaintiff requested an additional $350,000 in punitive damages against
each individual Defendant.

The facts underlying the Complaint are recounted in great detail in Diedrich v. City of
Newport News, Civil Action No. 4:04cv9 ("Diedrich I") and the Court's Order of August 11,

2015, ECF No. 12. The pertinent facts giving rise to Plaintiffs Complaint, as described by this
Court in its Order on the Motion to Dismiss, are as follows:

Plaintiff was hired by the City of Newport News Police Department in 1991. Initially
employed as a law enforcement officer, Plaintiffs employment was terminated in May 1995

after he was arrested and charged with grand larceny and perjury in April 1995. Acquitted of the
charges, Plaintiff was reinstated in October 1996.

In October 2002, six years later, then-Chief of Police Dennis A. Mook transferred

Plaintiff from his law enforcement position to a civilian position in the Records Division.

Plaintiffs law-enforcement authority and permission to hold secondary employment (i.e.,
moonlight) were rescinded at this time. Thereafter, Plaintiff filed a grievance and challenged his
transfer to the Records Division as an illegal disciplinary and punitive action.
Unable to obtain relief through the grievance process, Plaintiff filed a Section 1983 suit

in this Court, Diedrich I, alleging, inter alia, deprivation of liberty under the Fifth Amendment,
and deprivation of due process under the Fourteenth Amendment of the United States

Constitution. Specifically, Plaintiff alleged that his transfer to the Records Division was for

punitive reasons and amounted to a demotion. Plaintiff also alleged a property interest in
secondary employment. In addition, Plaintiff brought state law claims for intentional and
negligent infliction of emotional distress.

The Court found that (1) Plaintiff had failed to assert a liberty interest under the Fifth
Amendment because he remained employed, and (2) he had failed to assert a property interest

under the Fourteenth Amendment because (a) he was not entitled to a particular departmental
assignment, and (b) could not assert a property interest in secondary employment. On April 26,
2004, pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court dismissed Plaintiffs §
1983 claims. The Court declined to exercise jurisdiction over Plaintiffs state law claims.
Following Diedrich I, in November 2006, Plaintiff was transferred from the Records

Division to the Recruiting Division, and assigned as a Recruiter and background investigator.
(PL's Compl. K30.) In that role, Plaintiff conducted background investigations on newly hired

police recruits. (PL's Compl. ^ 31.) In December 2010, Plaintiff received permission from thenChief of Police James D. Fox to apply for a Training Detective position in the Training Unit.

(PL's Compl. 1) 32-33.) Deemed the most qualified for the position, Plaintiff was selected and
transferred to the Training Unit on December 16, 2010. (PL's Compl. U34-35.) That year, Chief
Fox also permitted Plaintiff to once again hold secondary employment. (PL's Compl. f 38.)

Thereafter, Abbitt Management hired Plaintiff as a courtesy officer. (PL's Compl. K39.)
On January 16, 2014, Richard W. Myers was sworn in as Chief of Police for the Newport

News Police Department. (PL's Compl. ^ 40.) On January 31, 2014, Chief Myers suspended

Plaintiffs duties as Training Detective. (PL's Compl. 141.) In February 2014, Chief Myers
launched a review into Plaintiffs 1996 charges. (PL's Compl. f 44.) Plaintiff alleges that despite
his exoneration, on March 16, 2014, Plaintiff was punitively transferred from the position of
Training Detective to a civilian position in the Records Division and thereby suffered a

significant demotion, tantamount to an outright dismissal. (PL's Compl. ^ 47.) Plaintiff was also
stripped of all police authority and all secondary positions. Id

Plaintiff also alleges that Defendants publicized the adverse employment actions when

they ordered Sgt. Karen Bozeman of the Newport News Police Department to inform Abbitt
Management, Plaintiffs secondary employer, of the actions that were taken against Plaintiff.
(PL's Compl. H49.) Abbitt subsequently terminated Plaintiffs employment. Id.
On May 28, 2014, Plaintiff filed a grievance pursuant to Virginia Law-Enforcement
Officer's Procedural Guarantee Act, Virginia Code § 9.2-500-9.2-507 and claimed a demotion
and transfer for punitive reasons. (PL's Compl. \ 51.) The City Manager's designee determined
that Plaintiffs issues were "nongrievable." (Def.'s Mot. to Dismiss, Ex. G, "In Re: Jason L.
Diedrich Grievance #14-06, MISC. No.: CL1401293F-15 (Grievability Appeal)".) Plaintiff
appealed the decision to the Circuit Court for the City of Newport News which determined, inter

alia, that (1) Plaintiffs transfer to the Records Unit was not a disciplinary demotion, (2) the
transfer was fully within the rights reserved to the management of the City of Newport News,

and (3) the matter was not grievable. Id. On September 23, 2014, Plaintiff filed a petition for
appeal with the Supreme Court of Virginia.

On January 12, 2015, while his petition for appeal was still pending with the Supreme
Court of Virginia, Plaintiff filed his Complaint. The Virginia Supreme Court dismissed

Plaintiffs complaint on Defendant's motion to dismiss for lack of subject matter jurisdiction.
On August 11, 2015, the Court granted Defendants' Motion to Dismiss Counts One and

Two. ECF No. 12. The Court declined to exercise discretion over Count Three, which alleged
state law claims for Intentional Infliction of Emotional Distress. Id.

On August 24, 2015, Defendants filed the instant Motion. This matter has been fully
briefed and is now ripe for judicial determination.

II. LEGAL STANDARD

District Courts of the United States enjoy broad discretion in determining whether a

prevailing party may recover reasonable attorney's fees. E.E.O.C. v. Great Steaks, Inc., 661 F.3d
510, 517 (4th Cir. 2012); Rum CreekCoal Sales v. Caperton, 31 F.3d 169, 174 (4th Cir. 1994);

Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998). Section 1988 of Title 42 of the United
States Code provides that, "[i]n any action or proceeding to enforce a provision of
section... 1983...of this title...the court, in its discretion, may allow the prevailing party,...a

reasonable attorney's fee as a part of the costs..." 42 U.S.C. § 1988.
In the context of suits brought under Section 1983, a prevailing defendant may recover

attorney's fees if the court finds that the plaintiffs action was "frivolous, unreasonable, or

without foundation." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). A claim
meets this standard when it is lacking in merit at the time it was filed. Bobby v. Sch. Bd. ofCity
ofNorfolk, 54 F. Supp. 3d 466, 470 (E.D. Va. 2014).

The amount of fees that is proper in a given case depends upon the court's calculation of
the "lodestar figure," or the reasonable hourly rate times the number of hours reasonably

expended by an attorney on the case. Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir. 1987).
The factors the court must consider are: (1) the time and labor expended; (2) the novelty and

difficulty of the questions raised; (3) the skill required to properly perform the legal services
rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary
fee for like work; (6) the attorney's expectations at the outset of the litigation (7) the time
limitations imposed by the client or circumstances; (8) the amount in controversy and the results

obtained; (9) the legal experience, reputation, and ability of the attorney; (10) the undesirability
of the case within the legal community in which the suit arose; (11) the nature and length of the

professional relationship between attorney and client; and (12) attorneys' fees awards in similar
cases. Id. at 226 n. 28. The Kimbrell 's review is not an exhaustive discussion of each and every

factor, but rather a discussion of "those factors that are relevant to [the Court's] determination of

the reasonable amount of attorney fees to award in each particular case." Kennedy v. A Touch of
Patience, 779 F. Supp. 2d 516, 526 (E.D. Va. 2011).
III. DISCUSSION

The question before this Court is simple: Are Defendants entitled to reasonable
attorney's fees, and if so, in what amount? Defendants argue that the Court should grant fees
because "Plaintiffs attempt to re-litigate an issue decided by the Circuit Court fo the City of
Newport News in this court was frivolous, unreasonable, and without foundation." ECF No. 15

at 3. Additionally, Defendants suggest the Court should award fees because "Plaintiff attempted

to bring a cause of action for records within his personnel file that have been there by his own
admission since 1996." Id. at 3. Plaintiff argues, in spite of all of the previous rulings on the

very same issues raised in the Complaint by this and other courts, that the "claims were not
'frivolous, unreasonable, and without foundation.' An award of attorney's fees is not appropriate
in this matter." ECF No. 16.

The Court will not use a Motion for Attorney's Fees as an opportunity to reopen and relitigate this case. Plaintiff has had more than one full and fair opportunity to be heard on these
claims. Plaintiff in this action simply sought to raise again issues that had been previously

raised, and he sought to do so while similar claims were on appeal. Plaintiffs case is the very
definition of frivolous, unreasonable, and without foundation. An award of attorney's fees is

therefore absolutely appropriate.

The Court having found that fees are appropriate, the question becomes what amount of
fees is reasonable. Defendants have submitted an affidavit of Attorney Darlene P. Bradberry, a

Deputy City Attorney with over 20 years of experience in civil litigation in both public and

private practice. ECF No. 15-1. Attorney Bradberry has suggested that an hourly rate of $150 is
reasonable for an attorney defending 42 U.S.C. § 1983 cases. Id.

Defendants request an award

of $10,260, the total amount of fees for 68.4 hours of work at a rate of $150.

At no point in his filing does Plaintiff challenge the affidavit of Attorney Bradberry

generally or her hours calculation and fee request specifically. The Court finds that $150 an hour
is an absolutely reasonable fee for an attorney of Attorney Bradberry's qualifications and

experience, and the worksheet attached as Exhibit A to the affidavit reasonably accounts for the
time spent working on the case. In reviewing the Kimbrell 's factors, the Court concludes that
none of the factors counsel in favor of a finding for Plaintiff and the Court therefore finds an
award of $ 10,260 to be reasonable and appropriate.
IV. CONCLUSION

Therefore, for the reasons stated herein, Defendants' Motion for Attorney's Fees is

GRANTED. Defendant is awarded attorney's fees in the amount of $10,260.
The Clerk is DIRECTED to send a copy of this Memorandum Opinion and Order to
counsel for the parties.
IT IS SO ORDERED.

Norfolk, Virginia

MarchJ/ , 2016

Raymond A. Jackson
United States District Judge