Hays v. Town of Gauley Bridge, West Virginia
Filing
139
MEMORANDUM OPINION AND ORDER granting defendants' 130 MOTION to enforce to the extent that defendants are entitled to costs to be determined by the Clerk as earlier set forth herein and denied as to its residue; granting defendants'[1 34] MOTION to Seal Exhibit A; denying plaintiff's 132 MOTION for Sanctions; terminating the 88 MOTION to reinstate this case to the active docket and 95 MOTION in Limine. Signed by Judge John T. Copenhaver, Jr. on 3/19/2012. (cc: plaintiff; attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RODNEY E. HAYS,
Plaintiff
v.
Civil Action No. 2:09-1272
TOWN OF GAULEY BRIDGE, WV,
a West Virginia Municipal Corporation, and
WILLIAM KINCAID, individually and
in his official capacity as Judge of the
Gauley Bridge Municipal Court, and
SEAN WHIPKEY, individually and
in his official capacity as a Town of
Gauley Bridge Police Officer, and
HEATH WHIPKEY, individually and
in his official capacity as a Town of
Gauley Bridge Police Officer, and
CHARLES BURKHAMER, individually and
in his official capacity as a Town of
Gauley Bridge Police Officer,
Defendant
MEMORANDUM OPINION AND ORDER
Pending are defendants' motions (1) to enforce offer
of judgment and for costs ("motion to enforce"), filed December
28, 2011, and (2) to seal exhibit A, filed January 10, 2012, and
plaintiff's motion for sanctions against defendants' lawyer and
law firm, filed January 3, 2012.1
1
The court notes that two motions listed as pending in
this action have been adjudicated. The Clerk is directed to
terminate defendants' motion to reinstate this case to the
active docket, filed August 16, 2011, (docket number 88) and
defendants' motion in limine, filed October 31, 2011 (docket
number 95).
I.
On April 1, 2011, defendants served upon plaintiff an
offer of judgment pursuant to Federal Rule of Civil Procedure
68(a).
The offer of judgment provided as follows:
Defendants . . . hereby offer[] to Plaintiff to take
judgment against the Defendants in this action for the
total sum of Five Thousand Dollars ($5,000.00) in full and
complete satisfaction and final disposition of any and all
claims, including, but not limited to, all damages,
applicable interest, attorneys' fees and costs accrued to
date, that Plaintiff may have against the Defendants and
any entity or entities associated therewith, arising out of
the allegations which serve as the basis for the claims
asserted in . . . [this case].
Be advised that . . . if, within fourteen (14) days
after the service of this Offer of Judgment, the Plaintiff
fails to provide written notice of acceptance of this
Offer, such Offer shall be deemed withdrawn in accordance
with Rule 68, and, in further accordance with said Rule,
the Offer shall not be disclosed to the jury and evidence
thereof shall not be admissible. If this action proceeds to
trial and the judgment finally obtained by the Plaintiff is
not more favorable than the Offer hereby made by this
Defendant, the Plaintiff must pay to the Defendants all
costs of defense incurred after the making of this Offer,
as provided under Rule 68.
Acceptance of this Offer shall operate to fully and
completely extinguish any and all claims by the Plaintiff
against these Defendants in this action and any entity or
entities associated therewith, with prejudice.
(Off. of Jgt. at 1-2).
Plaintiff did not respond to the offer
of judgment.
2
On December 20, 2011, trial commenced.
The jury was
instructed respecting plaintiff's claims for (1) a Fourth
Amendment unlawful seizure against police chief Sean Whipkey and
the Town of Gauley Bridge ("Town") based upon a lack of
reasonable suspicion or probable cause to support the traffic
stop that resulted in plaintiff receiving a speeding citation;
(2) a Fourth Amendment unlawful seizure claim against Chief
Whipkey, Municipal Court Judge William Kincaid, and the Town
based upon “malicious prosecution” arising out of the
proceedings related to the disposition of the citation; and
(3) a Sixth Amendment claim against all defendants based
upon a nonpublic trial held by Municipal Judge Kincaid
respecting the citation.
On December 21, 2011, the jury rendered its verdict.
Having found that Chief Whipkey had probable cause to stop
plaintiff's vehicle and issue the citation, the jury found in
favor of the defendants as to both Fourth Amendment claims.
The
jury additionally found that plaintiff failed to prove his Sixth
Amendment claim as against defendants Chief Whipkey, Officer
Heath Whipkey, and Officer Charles Burkhamer.
The court had
previously determined as a matter of law that defendants
Municipal Judge Kincaid and the Town, at a minimum, bore
3
responsibility for the Sixth Amendment deprivation.
The jury
awarded plaintiff emotional distress damages against those two
defendants in the amount of $904.
Defendants now move to enforce the offer of judgment.
They seek not only the "costs" explicitly mentioned in their
offer of judgment but also their attorney fees.
Both of these
expenses are sought for the period from April 1, 2011, through
"the completion of this motion."
(Mot. to Enf. at 1).
The
basis for the request for attorney fees is outlined in the
memorandum supporting defendants' request:
The United States Supreme Court discussed Rule 68 in Marek
v. Chesny, 473 U.S. 1, 6-7, 87 L. Ed. 2d 1, 105 S. Ct. 3012
(1985). It noted that the term “costs” in Rule 68 includes
"all costs properly awardable in an action." Marek, 473
U.S. at 9. In a Section 1983 action, "costs" include the
prevailing party's attorney's fees. Id. 42 U.S.C. § 1988(b)
defines “costs” to include reasonable attorney fees for an
action brought under 42 U.S.C. § 1983.
(Defs.' Supp. Mem. at 3).
II.
The material portions of Rule 68 provide, in pertinent
part, as follows:
a) Making an Offer; Judgment on an Accepted Offer. At least
14 days before the date set for trial, a party defending
against a claim may serve on an opposing party an offer to
4
allow judgment on specified terms, with the costs then
accrued. If, within 14 days after being served, the
opposing party serves written notice accepting the offer,
either party may then file the offer and notice of
acceptance, plus proof of service. The clerk must then
enter judgment.
. . . .
(d) Paying Costs After an Unaccepted Offer. If the judgment
that the offeree finally obtains is not more favorable than
the unaccepted offer, the offeree must pay the costs
incurred after the offer was made.
Fed. R. Civ. Proc. 68(a), (d).
In Marek, plaintiffs alleged an excessive force claim
against three defendant law enforcement officers.
Defendants
served a Rule 68 offer of judgment "'for a sum, including costs
now accrued and attorney's fees, of ONE HUNDRED THOUSAND
($100,000) DOLLARS.'”
omitted).
Id. at 3-4 (quoted portion of record
Plaintiffs refused the offer of judgment.
At trial,
the jury returned a verdict in plaintiffs' favor for $5,000 on a
state-law claim, $52,000 for the excessive force claim, and
$3,000 in punitive damages.
Plaintiffs sought $171,692.47 in costs, including
attorney's fees pursuant to 42 U.S.C. § 1988.
The sum included
costs and attorney fees incurred following the Rule 68 offer of
judgment.
Defendants opposed that portion of the fees and costs
5
incurred following the offer of judgment based upon the language
of Rule 68(d) shifting all "costs" to the offeree.
Defendants
asserted that, pursuant to section 1988, attorney fees are part
of the “costs” addressed by Rule 68.
The question posed to the Supreme Court in Marek,
then, was whether the term “costs” in Rule 68 includes attorney
fees awardable under section 1988.
Central to the holding in
Marek was the following analysis:
[T]he most reasonable inference is that the term “costs” in
Rule 68 was intended to refer to all costs properly
awardable under the relevant substantive statute or other
authority. In other words, all costs properly awardable in
an action are to be considered within the scope of Rule 68
“costs.” Thus, absent congressional expressions to the
contrary, where the underlying statute defines “costs” to
include attorney's fees, we are satisfied such fees are to
be included as costs for purposes of Rule 68.
Id. at 9 (emphasis added).
The analysis led to the following
conclusion:
Pursuant to . . . [section 1988], a prevailing party in a
§ 1983 action may be awarded attorney's fees “as part of
the costs.” Since Congress expressly included attorney's
fees as “costs” available to a plaintiff in a § 1983 suit,
such fees are subject to the cost-shifting provision of
Rule 68. This “plain meaning” interpretation of the
interplay between Rule 68 and § 1988 is the only
construction that gives meaning to each word in both Rule
68 and § 1988.
Id.
6
While they do not cast it as such, defendants' propose
a significant extension of Marek.
The thrust of Marek is that a
civil rights plaintiff who rejects an offer more favorable than
his ultimate recovery in the case may not recover attorney fees
incurred following rejection of the offer of judgment.
Defendants have in mind not the blocking of post-offer attorney
fees incurred by plaintiff, but a shift of their own post-offer
attorney fees to him.2
The Supreme Court in Marek was not called
upon to address that question and explicitly left it aside.
Marek, 473 U.S. at 4 n.1 (“The District Court refused to shift
to [plaintiff] any costs accrued by [defendants]. [Defendants]
do not contest that ruling.”).
The courts of appeal that have reached the issue have
split, with the overwhelming majority reaching a conclusion
contrary to that advanced by defendants. See, e.g., Champion
Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1032
(9th Cir. 2003) (stating with respect to a shifting of defense
attorney fees that "[w]hile Rule 68 is designed to 'require
plaintiffs to "think very hard" about whether continued
2
Plaintiff is not entitled to attorney fees in any event
inasmuch as he is proceeding pro se.
7
litigation is worthwhile,' it is not a gun to the head."); Le v.
University of Pa., 321 F.3d 403, 410-411 (3rd Cir. 2003); EEOC
v. Bailey Ford, Inc., 26 F.3d 570, 571 (5th Cir. 1994); O'Brien
v. City of Greers Ferry, 873 F.2d 1115, 1120 (8th Cir. 1989);
Crossman v. Marcoccio, 806 F.2d 329, 333 (1st Cir. 1986) (noting
that avoiding the contrary approach prevents a "chilling effect
on the initiation of civil rights actions from attaining glacial
magnitude . . . ."); Grosvenor v. Brienen, 801 F.2d 944, 946 n.4
(7th Cir. 1986); Martin A Schwartz & Kathryn R. Urbonya, Section
1983 Litigation 205 (2nd ed. 2008); Harold S. Lewis, Jr. &
Thomas A. Eaton, Rule 68 Offers of Judgment: The Practices and
Opinions of Experienced Civil Rights and Employment Discrimination Attorneys, 241 F.R.D. 332, 345 (2007); 1 Robert L.
Rossi, Attorneys' Fees § 6:25 (3rd ed. elec. 2011). But see
Jordan v. Time, Inc., 111 F.3d 102, 105 (11th Cir. 1997).
The lopsided nature of the authorities is easily
explained when one considers key language in Marek partially
underscored infra: "[T]he term 'costs' in Rule 68 was intended
to refer to all costs properly awardable under the relevant
substantive statute or other authority."
(emphasis added).
Marek, 473 U.S. at 9
Fees under section 1988 are "properly
awardable" only to a litigant who qualifies as a "prevailing
8
party."
The Supreme Court has spoken quite clearly respecting
when a defendant is a "prevailing party" under the statute.
See
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)
(noting a civil rights defendant may not be awarded attorney's
fees under section 1988 unless the trial court determines that
the plaintiff's action was “frivolous, unreasonable, or without
foundation.”).
One cannot brand plaintiff's claims in this
action as "frivolous, unreasonable, or without merit." Id.
A
good portion of his case survived summary judgment, and he
prevailed on one claim.
The case need not have made it that far
in order to avoid a finding under Christiansburg. See EEOC v.
Great Steaks, Inc., 667 F.3d 510, 518 (4th Cir. 2012) ("Generally, therefore, the denial of a motion for judgment as a matter
of law made at the close of all evidence strongly indicates that
the plaintiff’s case was not frivolous, unreasonable, or
groundless.").
Nevertheless, defendants are, pursuant to Rule 68(d),
entitled to those costs specified in 28 U.S.C. § 1920 for the
period from April 1, 2011, through their last valid costproducing act thereafter.
request incomplete.
The court, however, deems the present
Defendants are referred to Local Rule of
Civil Procedure 54.1, which provides pertinently as follows:
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The prevailing party shall prepare a bill of costs within
30 days after entry of the final judgment on the form
supplied by the clerk. The bill of costs shall contain an
itemized schedule of the costs and a statement signed by
counsel for the prevailing party that the schedule is
correct and the charges were actually and necessarily
incurred. The original of the bill of costs shall be filed
with the clerk and a copy served on counsel for the adverse
party or on the unrepresented adverse party.
Loc. R. Civ. Proc. 54.1.
The referenced form is available on
the court's public website.
It is AO 133, revised December
2009.
Based upon the foregoing discussion, it is ORDERED
that defendants' motion to enforce be, and it hereby is, granted
to the extent that defendants are entitled to costs to be
determined by the Clerk as earlier set forth herein and denied
as to its residue.
Inasmuch as the court has not relied in any
way upon Exhibit A, which is a statement of attorney fees and
costs, it is ORDERED that defendants' motion to seal the exhibit
be, and it hereby is, granted.
It is further ORDERED that
Exhibit A be, and it hereby is, sealed pending the further order
of the court.
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III.
The court has additionally reviewed plaintiff's motion
for sanctions.
Plaintiff contends that "[t]he Defendant's
lawyer has made a lot of frivolous and harassing legal arguments
. . . ."
(Mot. at 2).
He cites defense counsel's (1) failure
to cite case law supportive of plaintiff's own Sixth Amendment
claim, (2) alleged misunderstanding of the authority of
municipal judges, (3) insisting that plaintiff pay half of the
mediator's fee in the case, and (4) improper cross examination
of plaintiff respecting certain tax matters and accusing him of
tax fraud.
He additionally asserts that defendant Chief
Whipkey, and defense witness and Assistant Prosecuting Attorney
Brian Parsons, are properly charged with "mislead[ing] the jury,
confus[ing] the issues, and misrepresent[ing] the facts and laws
of the case . . . ."
(Mot. at 8).
Plaintiff's contentions are readily dispatched.
The
adversary need only cite binding authority to the tribunal.
Defense counsel did not transgress that requirement.
Further, a
mere mistake by defense counsel respecting the governing law,
assuming a mistake in fact occurred, is insufficient to give
rise to a sanctions order.
Respecting the mediator's fee, it is
11
customary for such costs to be split between those parties who
submit to the mediator's authority.
As to the cross examination
of plaintiff conducted by defense counsel, the vigorous inquiry
did not transgress any ethical boundary lines.
Plaintiff also
fails to identify any contemporaneous objection that he made to
the inquiry.
Finally, any challenged testimony by either Chief
Whipkey or Assistant Prosecutor Parsons was subject to cross
examination and would not, in any event, give rise to a
sanctions order.
Inasmuch as there is lacking any basis for sanctions,
it is ORDERED that the motion for sanctions be, and it hereby
is, denied.
IV.
One additional matter warrants discussion.
On
December 21, 2011, after the jury returned its verdict, but
prior to the jurors being excused, the court was prepared to
take up phase two of the case, namely, whether plaintiff was
entitled to punitive damages against Municipal Judge Kincaid
respecting the Sixth Amendment claim and, if so, in what amount.
Moments later, plaintiff disclosed that the entirety of the
12
evidence he planned to introduce in phase two consisted solely
of the number of citations written in the Town for some
undisclosed period, along with its financial statements.
When plaintiff was advised that the citations would be
irrelevant inasmuch as the punitive damages request was limited
to the Sixth Amendment claim, he stated that he would just have
to cancel out the punitive damages part of the case.
At that
point, defense counsel asked that the punitive damages claim be
dismissed.
When plaintiff was asked for his position on the
dismissal request he offered no response.
The court granted the motion to dismiss.
two bases for that action.
There were
First, plaintiff is deemed to have
abandoned the punitive damages claim inasmuch as he stated he
wished to cancel it.
He also stood silent when defense counsel
requested dismissal of the claim.
He has likewise not sought
reconsideration of the dismissal since that time.
Second, the standard governing the entitlement to
punitive damages in a case such as this is quite rigorous.
See
Smith v. Wade, 461 U.S. 30, 56 (1983) (“[A] jury may be
permitted to assess punitive damages in an action under § 1983
13
when the defendant's conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.”)
(quoted in Presley v. City Of Charlottesville, 464 F.3d 480, 493
(4th Cir. 2006)).
The evidence relating to the Sixth Amendment
claim did not provide a reasonable jury with a legally
sufficient evidentiary basis to find for plaintiff under the
Smith standard.
The punitive damages claim was thus properly
dismissed.
V.
Based upon the foregoing discussion, it is ORDERED as
follows:
1.
That defendants' motion to enforce be, and it hereby
is, granted, to the extent that defendants are
entitled to costs to be determined by the Clerk as
earlier set forth herein and denied as to its residue;
2.
That defendants' motion to seal be, and it hereby is,
granted; and
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3.
That plaintiff's motion for sanctions be, and it
hereby is, denied.
The Clerk is directed to transmit copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
ENTER: March 19, 2012
John T. Copenhaver, Jr.
United States District Judge
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