Opinion
CIVIL ACTION NO. 1:09cv609-WHA-WC, (WO).
February 18, 2011
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on a Motion for Attorney's Fees filed by Defendant KFH Industries, Inc. ("KFH") on February 2, 2011 (Doc. #80), and a Response to Defendant's Motion for Attorney's Fees and Motion to Alter or Amend the Court's Order and Judgment Granting Summary Judgment, filed by Plaintiffs Gregory Lawson ("Lawson") and Bobby Wells ("Wells," collectively, "Plaintiffs") on February 16, 2011 (Doc. #82). In their Response, Plaintiffs not only contest KFH's request for attorney's fees, but also move to have this court alter or amend its Order of January 24, 2011, granting summary judgment in KFH's favor against both Plaintiffs. For the reasons to be discussed, KFH's Motion for Attorney's Fees is due to be DENIED, and Plaintiffs' Motion to Alter or Amend is due to be DENIED.
II. DISCUSSION
A. Motion to Alter or Amend
Plaintiffs have requested, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, that this court alter or amend its Order granting summary judgment in favor of KFH. A Rule 59(e) motion should be granted only if (1) there has been an intervening change in the law; (2) new evidence has been discovered that was not previously available to the parties at the time the original order was entered; or (3) reconsideration is necessary to correct a clear error of law or prevent manifest injustice. See, e.g., McCoy v. Macon Water Auth., 966 F. Supp. 1209, 1222-23 (M.D. Ga. 1997). Plaintiffs allege that the court should reconsider its decision under the third ground for reconsideration.
Plaintiffs' brief does not explicitly state reasons why judgment should be altered or amended, rather, Plaintiffs' brief discusses reasons why Plaintiffs' suit against KFH was meritorious and therefore not a valid basis for awarding attorney's fees. The court will treat Plaintiffs' arguments regarding whether their suit is meritorious as arguments also directed at why this court should alter or amend its prior judgment.
Plaintiffs' main argument for why this court's earlier Order should be altered is that they contend the court erroneously determined that Louis DeRosier ("DeRosier") was the decisionmaker who decided to terminate Plaintiffs in this case. Plaintiffs contend that there is at least an issue of fact that Robert Gourlay ("Gourlay"), not DeRosier, was the decisionmaker.
This court found that DeRosier was the decisionmaker because
In this case, Gourlay submitted an affidavit that states that Louis DeRosier was the decisionmaker who decided to fire Plaintiffs. Gourlay Aff. at 3. Plaintiffs do not directly dispute this point, much less cite admissible evidence showing that Louis DeRosier was not the decisionmaker.
Doc. #77 at 19.
Defendants contend that they have presented admissible evidence creating an issue of fact as to whether Gourlay was the decisionmaker. As a preliminary and threshold point, the court notes that this argument is irrelevant. This court explicitly stated: "[e]ven if the Plaintiffs' evidence were sufficient to make a jury question as to whether Gourlay, rather than DeRosier, was the actual decisionmaker, which it is not, there is no evidence of racial animus on his part." Doc. #77 at 19 n. 4. Plaintiffs contend that if Gourlay is the decisionmaker, this court could find he had racist motives under the cat's paw theory of liability by acting at the behest of Richard Scarpelli ("Scarpelli") and Andy Stokes ("Stokes"), who Plaintiffs contend had racist motives. The evidence before the court showed that Gourlay conducted an independent investigation by interviewing not only Scarpelli and Stokes, but also DeRosier. Because Gourlay conducted an independent investigation, and there is no evidence from which a reasonable jury could conclude that Gourlay, if he had been the decisionmaker, merely followed the recommendations of Scarpelli and Stokes, he cannot be imputed with racist motives under the cat's paw theory. Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) ("[C]ausation may be established if the plaintiff shows that the decisionmaker followed the biased recommendation without independently investigating the complaint.") (emphasis added). Therefore, even if Gourlay were found to be the decisionmaker, this court would still grant summary judgment to KFH.
In any event, Plaintiffs' evidence is not sufficient to create an issue of fact as to whether Gourlay was the decisionmaker. Plaintiffs contend that Gourlay was the driving force behind the investigation into Plaintiffs' alleged misconduct. However, simply because Gourlay had a hand in the investigation that led to Plaintiffs' termination does not mean that DeRosier could not be the ultimate decisionmaker. Plaintiffs also note that, before they were supposed to go to trial on August 23, 2010, (1) Plaintiffs' trial brief stated that Gourlay terminated them; and (2) the court stated that one evidentiary dispute in this case was whether Gourlay or DeRosier was the decisionmaker. The court finds these points unpersuasive, because a party has a burden to present admissible evidence to survive summary judgment, and the above two facts are not admissible evidence on summary judgment. Simply because this court may have found that the parties disputed an evidentiary issue in the past, prior to trial, does not mean that the evidentiary dispute would have been sufficient to survive summary judgment if a summary judgment motion had been filed. Moreover, simply because an evidentiary issue existed in the past does not mean it will always exist in the future.
This trial date was later continued. See Doc. #65.
Plaintiffs also argue that they are entitled to survive summary judgment because they presented sufficient evidence to find KFH's proffered nondiscriminatory reasons false. The court has already considered and rejected the argument that proving all of these reasons false precludes summary judgment in this case, and will not reconsider it at this stage. See Doc. #77 at 12-22.
In sum, Plaintiffs' Motion to Alter or Amend is due to be DENIED.
B. Motion for Attorney's Fees
KFH moves for this court to award it reasonable attorney's fees under Rule 54(d)(2) of the Federal Rules of Civil Procedure, as well as 42 U.S.C. §§ 1988 and 2000e-5(k). These provisions allow the court to award attorney's fees to a "prevailing party" in a § 1981 and Title VII suit, respectively.
Rule 54(d)(2) requires, in pertinent part, (1) the claim for attorney's fees to be by motion; (2) the motion to be filed no later than 14 days after judgment, specify the judgment and the grounds for the award, state the amount sought or provide a fair estimate of it, and disclose, if the court orders, the terms of any agreement about fees for services for which the claim was made; (3) the court to give an opportunity for adversary submissions on the motion. Neither party disputes that the requirements of Rule 54(d)(2) were met.
Attorney's fees are routinely awarded to a prevailing plaintiff in a § 1981 and Title VII suit. Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 417 (1978); see also Hughes v. Rowe, 499 U.S. 5, 14 (1980). However, a prevailing defendant can only receive attorney's fees in such cases if "the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg, 434 U.S. at 417. In other words, "[t]he plaintiff's action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees." Hughes, 499 at 14 (emphasis added).
The Eleventh Circuit considers three factors in determining whether a claim is frivolous: "(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits." Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985). However, these factors are merely general guidelines, and "[d]eterminations regarding frivolity are to be made on a case-by-case basis." Id.
The first Sullivan factor favors Plaintiffs. This court wrote in its opinion that it assumed without deciding that Plaintiffs had established a prima facie case. According to Bonner v. Mobile Energy Servs. Co., 246 F.3d 1303 (11th Cir. 2001), when a district court assumes without deciding that plaintiffs meet their prima facie case, then for purposes of the Sullivan factors, the first factor will weigh in favor of the plaintiffs. Id. at 1305 n. 11.
The second element is neutral. KFH admits it made a settlement offer to Plaintiffs, however, the offer was a low, "nuisance value settlement offer," which did not recognize that the case was meritorious. In Quintana v. Jenne, 414 F.3d 1306 (11th Cir. 2005), the Eleventh Circuit held that with respect to this second Sullivan factor, courts should consider the "amount of the offer." Id. at 1310. In that case, because the amount of the offer was not a "substantial amount . . . [the second] factor does not support either party." Id. Under the logic of Quintana, because the value of the settlement offer in this case was so low, the second Sullivan factor is neutral.
The third factor favors KFH, because this case ended prior to trial.
However, merely because this court granted summary judgment in favor of KFH does not mean that Plaintiffs' claims are frivolous. In most cases where frivolity has been found, "the plaintiffs did not introduce any evidence to support their claims." Sullivan, 773 F.2d at 1189. That is not the case here. In fact, this case is similar to a case the Eleventh Circuit held was not frivolous. In Bonner, the Eleventh Circuit refused to award attorney's fees to a defendant who prevailed on summary judgment, in part because the plaintiffs satisfied their prima facie case, received a $125,000 settlement offer from the defendants, and submitted evidence of a report that "does not suggest that [the plaintiffs] were discharged based upon their gender, but it does establish at least the foundation of a claim that [the defendant] acted out of ulterior motives." Bonner, 246 F.3d at 1305. Likewise, in this case, Plaintiffs satisfied their prima facie case, and presented sufficient evidence to create an issue of fact as to whether KFH's proffered nondiscriminatory reasons for terminating Plaintiffs were false. While Plaintiffs did not receive a settlement offer as large as the plaintiffs in Bonner, that fact alone does not tip the scales of this case to the frivolous side.
Based on the three Sullivan factors as well as the Bonner case, the court concludes that it would be inappropriate to award attorney's fees to KFH. Awarding attorney's fees to KFH here would "undercut the efforts of Congress to promote the vigorous enforcement provisions of Title VII [and § 1981]," which the Supreme Court has urged courts to avoid. Id. (quoting Christiansburg, 434 U.S. at 421-22).
Because the court has concluded that KFH's Motion for Attorney's Fees is due to be denied on the ground that this suit was not frivolous, this court need not address Plaintiffs' alternative arguments regarding fees incurred after the dispositive motion deadline, or regarding Plaintiffs' financial resources.
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED as follows:
(1) KFH's Motion for Attorney's Fees is DENIED (Doc. #80); and
(2) Plaintiffs' Motion to Alter or Amend (Doc. #82) this court's judgment of January 24, 2011 is DENIED.
Done this 18th day of February, 2011
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal See also 3pro se 4. Effect of a notice of appeal 4
: Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , 368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) , a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. : A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).