Opinion
Civil Action No. 98-2564-CM
March 14, 2003
MEMORANDUM AND ORDER
Pending before the court is defendants' Renewed Motion for Award of Attorneys' Fees and for Discovery Related Thereto (Doc. 143) and plaintiff's Motion to Strike (Doc. 152). As set forth below, defendants' motion is granted in part and plaintiff's motion is denied.
• Background
Plaintiff filed this action on December 7, 1998, asserting claims under 42 U.S.C. § 1983 and 1985, and claims under various other state statutes and common law causes of action. On January 27, 2000, this court granted, in part, defendants' motion to dismiss, thereby dismissing with prejudice all of plaintiff's claims arising under 42 U.S.C. § 1983 and 1985. On August 2, 2001, the court granted plaintiff's motion to voluntarily dismiss with prejudice his remaining claims against defendants. In addition, in its August 2, 2001 order, the court denied defendants' request to condition plaintiff's voluntary dismissal upon an award of their attorneys' fees. However, on September 6, 2001, the court granted defendants' request to conduct post-dismissal discovery for the purpose of seeking a factual basis to support their assertion of entitlement to attorneys' fees. The court limited the post-dismissal discovery to the deposition of plaintiff. In addition, in its September 6, 2001 order, the court granted defendants leave to re-submit their briefing seeking attorneys' fees and to incorporate the additional facts garnered, if any, through the post-dismissal discovery. Defendants deposed plaintiff on April 24, 2002, and now resubmit their request for an award of attorneys' fees in this case.
• Plaintiff's Renewed Motion to Strike
Plaintiff renews his prior Motion to Strike Defendants' Statement of Consultation (originally raised in Doc. 122). Plaintiff also appears to renew his Motion for Reconsideration (originally raised in Doc. 136). As set forth below, plaintiff's motions are denied.
º Renewed Motion to Strike
Plaintiff renews his motion to strike. On November 1, 2000, the court denied plaintiff's original motion to strike defendants' statement of consultation. Plaintiff now asserts that defendants failed to oppose his motion to strike defendants' statement of consultation and that defendants have never moved the court for an extension with respect to the statement of consultation specified in Rule 54. Accordingly, plaintiff asserts that his motion to strike "should have been granted long ago . . . as unopposed pursuant to D. Kan. Rule 7.4." (Pl.'s Mem. in Opp'n at 3). In addition, plaintiff also appears to assert that the court failed to find excusable neglect on the part of defendants sufficient to justify the denial of his original motion to strike. The court does not agree.
District of Kansas Local Rule 54.2 specifies that "[t]he court will not consider a motion to award statutory attorneys' fees made pursuant to Fed.R.Civ.P. 54(d)(2) until the moving party shall have first advised the court in writing that after consultation promptly initiated by the moving party, the parties have been unable to reach an agreement with regard to the fee award. The statement of consultation shall set forth the date of the consultation, the names of the those who participated, and the specific results achieved."
First, contrary to plaintiff's assertion, defendants have opposed plaintiff's motion to strike. On October 24, 2000, defendants filed an Opposition to Plaintiff's Motion to Strike (Doc. 127). In that Opposition, defendants asserted that any untimely submittal was due to excusable neglect and specified that they opposed plaintiff's arguments that their statement of conciliation was submitted untimely. Accordingly, plaintiff's original motion to strike was not "unopposed."
Second, the court notes that the court's order denying plaintiff's motion to strike did take into account whether defendants satisfied the excusable neglect standard at issue. In its November 1, 2000 order denying plaintiff's motion to strike, the court specified that it had "reviewed the arguments presented in the pending motions and in their supporting memoranda, the relevant federal and local rules of civil procedure, and the relevant case law" in making its decision. As noted above, defendants asserted that excusable neglect existed justifying the untimely submittals addressed by the motions at issue. The arguments and law reviewed by the court in reaching its decision included those raised by defendants and by plaintiff in the original papers. Accordingly, the court finds no basis in plaintiff's arguments for granting plaintiff's renewed motion to strike. Accordingly, plaintiff's renewed motion to strike is denied.
º Renewed "Motion for Reconsideration"
In addition, plaintiff appears to ask the court to again reconsider its order entered on September 6, 2001, granting defendants leave to conduct post-dismissal discovery related to attorneys' fees. Considering plaintiff's original motion to reconsider its September 6, 2001 order, on April 2, 2002, the court found its September 6, 2001 order was not in error as asserted by plaintiff and denied plaintiff's motion for reconsideration. Plaintiff again asks the court to reconsider its September 6, 2001 order.
The court notes that plaintiff fails to provide the court with authority for this second motion for reconsideration of the same order. District of Kansas local rules appear to provide for only one motion for reconsideration. The court will examine plaintiff's motion for reconsideration and does not issue an opinion about whether it is procedurally proper under the court's local rules.
Plaintiff asserts that the court misconstrued plaintiff's arguments raised in his motion for reconsideration and improperly placed a burden on plaintiff, rather than defendants, to prove that defendants were not entitled to discovery under the circumstances of this case. The court again disagrees with plaintiff. Whether plaintiff raised new arguments in his motion for reconsideration or recycled arguments first presented in opposition to the defendants' original motion, the court found, both in its September 6, 2001 order and its April 2, 2002, that whether to allow discovery of information related to a request for fees and expenses is within the discretion of the trial court. Smith v. Ford Motor Co., 626 F.2d 784, 794 (10th Cir. 1980). As set out in those prior orders, the court found it was a proper use of its discretion to allow limited post-dismissal discovery in this case. Plaintiff's "renewed" motion for reconsideration on this basis is denied.
• Defendants' Renewed Motion for Attorneys' Fees
Defendants assert they are entitled to an award of attorneys' fees under three separate theories, including an award under 42 U.S.C. § 1988 as a prevailing party defendant, an award under the exceptional circumstances exception to the American Rule, and an award under 28 U.S.C. § 1927 due to plaintiff counsel's multiplication of the proceedings of the case unreasonably and vexatiously. Having examined the three bases set out by defendants in support of their request for attorneys' fees, the parties' arguments, and the relevant statutory and case law, the court finds that an award of attorneys' fees in this case is appropriate only under 28 U.S.C. § 1927, as set forth below.
Section 1927 provides that "[a]ny attorney or other person admitted to conduct cases in any court of the United States . . . 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." 28 U.S.C. § 1927 (emphasis added). Sanctions are appropriately imposed under § 1927 "for conduct that, viewed objectively, manifests either intentional or reckless disregard of the attorney's duties to the court." Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc). Subjective bad faith is not a necessary showing for application of § 1927 sanctions. Instead, proper considerations for the court include whether plaintiff counsel's conduct, when viewed objectively, imposed "unreasonable and unwarranted burdens on the court and opposing parties,"and whether plaintiff's counsel acted "recklessly or with indifference to the law." Braley, 832 F.2d at 1507; In re TCI Ltd., 769 F.2d 441, 445 (7th Cir. 1985).
An award of sanctions under § 1927 is appropriate only where there is a showing of: "(1) a multiplication of proceedings by an attorney or other person; (2) by conduct that can be characterized as unreasonable and vexatious; and (3) a resulting increase in the cost of the proceedings." Shields v. Shetler 120 F.R.D. 123, 127 (D.Colo. 1988). Because § 1927 is penal in nature an award should only be made "`in instances evidencing a serious and standard disregard for the orderly process of justice'" and the court must be aware of the "need to ensure that the statute does not dampen attorneys' zealous representation of their clients' interests." Ford Audio Video Systems, Inc. v. AMX Corp., Inc., 161 F.3d 17, 1998 WL 658386, at *3 (10th Cir. Sept. 15, 1998) (quoting Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d 1159, 1165 (10th Cir. 1985) (internal quotations omitted)).
At issue here is whether plaintiff's counsel unreasonably and vexatiously multiplied the proceedings by: 1) filing a claim on his client's behalf under § 1983 and § 1985, 2) seeking numerous extensions of time either on the day of the relevant deadline or after the deadline had passed, 3) delaying his representation to counsel and to the court that, in addition to the personal difficulties he was facing, a separate and additional reason existed supporting his request for extensions of time, and 4) dismissing his client's remaining claims with prejudice after plaintiff's deposition was noticed. The court finds only issues one and two above provide a basis for an award of § 1927 fees against plaintiff's counsel.
º Viability of Plaintiff's § 1983 and § 1985 Claims
Plaintiff's counsel filed suit on his clients behalf asserting, in relevant part, claims under 42 U.S.C. § 1983 and § 1985. Upon motion by defendants, the court dismissed plaintiff's § 1983 claim. In their motion, defendants asserted that plaintiff failed to adequately allege action under color of state law, and therefore, under the authority of Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982), this claim should be dismissed. In his response, plaintiff conceded that he had "not sufficiently alleged action under color of state law" and conceded to the dismissal of this claim.
In addition, upon motion by defendants, the court dismissed plaintiff's § 1985 claim. In their motion, defendants asserted that plaintiff failed to allege the required discriminatory animus against a class of persons covered by § 1985. Plaintiff's Complaint alleged that plaintiff was part of a class of employees or potential employees recruited by defendants to work for a third party. As the court noted in its January 27, 2000 order, the class plead by plaintiff was unified by the treatment to which this third party subjected them and by their need to find, keep, and stay in a job due to financial considerations. The court's January 27, 2000 order recognized that only those groups affiliated with "the conditions prevailing in the South in 1871" are deemed sufficiently invidious to qualify for protection under § 1985, as this was the genesis of the animus the statute was intended to protect against. Wilhelm v. Continental Title Co., 720 F.2d 1173, 1175 (10th Cir. 1983). Moreover, this court recognized that, under Tenth Circuit precedent, it was clear that the protections of § 1985 do not extend beyond the classes already expressly provided coverage by the Supreme Court. Brown v. Reardon, 770 F.2d 896, 907 (10th Cir. 1985). Accordingly, the court dismissed plaintiff's § 1985 claim, finding the class as plead by plaintiff failed to qualify for the protections of § 1985.
The court now finds that plaintiff's acquiescence in defendants' challenge to plaintiff's § 1983 claim and the clarity of the law that plaintiff's class, as plead, was not the type of class covered by § 1985, establish that plaintiff's counsel failed to fully research the viability of these claims under the facts of this case. Although plaintiff's counsel should not be penalized for forwarding novel issues or arguments to the court, the court finds that the clarity of the applicable law indicates that by asserting these two claims, plaintiff's counsel acted "recklessly or with indifference to the law." In re TCI Ltd., 769 F.2d at 445. The policy underlying § 1927 dictates "that the attorney bear the costs of his own lack of care." Id.
The court finds that plaintiff's counsel's decision to move forward with these claims when no clear legal basis supported them multiplied the proceedings in this case, resulted in an increase in the cost of the proceedings, and was unreasonable and vexatious. Shields, 120 F.R.D. at 127.
º Unreasonable Delays
The record of this case establishes that plaintiff's counsel engaged in delaying conduct that is abusive of the judicial process. Plaintiff continuously failed to comply with the deadlines set forth by the court for the efficient disposition of his client's claims. Moreover, he sought extensions of time resulting in the delay of the proceedings for more than one year. Plaintiff's counsel engaged in this conduct, despite the court's admonishments throughout the course of the litigation that such behavior would be unacceptable.
Although defendants' counsel did acquiesce to many of the requested extensions, plaintiff's counsel's delay in timely complying with the deadlines set out in this case resulted in a multiplication of the proceedings for approximately 495 days — for more than one full year. Delay of this magnitude should not go unnoticed by the court. Although the court appreciates the personal difficulties plaguing plaintiff's counsel during the pendency of this litigation, the court cannot allow its sympathy for plaintiff's counsel to dictate the application of § 1927 attorneys' fees.
Specifically, plaintiff's counsel sought at least fifteen separate extensions of time. Plaintiff's counsel sought seven extensions of time to respond to defendants' motion to dismiss, resulting in an additional 149 days to the response time. Plaintiff's counsel sought two extensions of time to provide signed employment and medical records authorizations, resulting in an additional 47 days to respond to these requests. Plaintiff's counsel sought five extensions of time to file his motion for leave to amend the Complaint, resulting in an additional 99 days to file the motion. Plaintiff sought three extensions of time to file preliminary witness and exhibit lists, resulting in an additional 36 days of time to file these lists. Plaintiff sought two extensions of time to serve Rule 26 disclosures, resulting in an additional 98 days to serve these disclosures. Finally, plaintiff sought one extension of time to serve responses to defendants' request for production, resulting in an additional 18 days of time to serve these responses. Moreover, defendants filed three motions to compel plaintiff's compliance with case obligations, and plaintiff's counsel requested additional time to respond to two of them. It is clear that plaintiff's counsel's requests for approximately 495 days of additional time to comply with court mandated deadlines multiplied the proceedings in this case. Moreover, it is clear that these requests for more time resulted in an increase in the cost of the proceedings to defendants who were required to contemplate and respond to the requests, and in some instances, file papers seeking the court to compel plaintiff's counsel's compliance. In addition, the court finds that this conduct of plaintiff's counsel is easily characterized as unreasonable and vexatious. Shields, 120 F.R.D. at 127. The court finds this conduct represents unprofessional conduct which has burdened opposing counsel and this court. Where plaintiff's counsel was unable to prosecute his client's case, he had an obligation to remedy that situation rather than seek continuous delay of the court's proceedings. The court finds that plaintiff counsel's overall pattern of conduct "demonstrates a reckless disregard for his duties to this court." Julien v. Zeringue , 864 F.2d 1572, 1576 (Fed. Cir. 1989).
º Additional Arguments
Next, the court has examined the conduct of plaintiff's counsel in delaying his representation to counsel and to the court that, in addition to the personal difficulties he was facing, a separate and additional reason existed supporting his request for extensions of time, and in dismissing his client's remaining claims with prejudice after plaintiff's deposition was noticed. After examining this conduct in light of § 1927 principles, examining the relevant case law, and considering the arguments of the parties, the court finds this referenced conduct provides no basis for sanctioning plaintiff counsel's conduct under § 1927.
º Conclusion
Accordingly, for the reasons examined above, the court finds an award of "excessive fees," as defined by § 1927, is appropriate here, and such fees are hereby imposed against plaintiff's attorney personally. Defendants' motion is granted on this basis, as set forth above.
º Amount of Fee Award
Section 1927 only requires that plaintiff's counsel pay personally the excess attorneys' fees reasonably incurred by defendants in this case as a result of his improper conduct. S D Cal. Fruit Exch., Inc. v. Gurino, 783 F.2d 345, 347 (2d Cir. 1986). Defendants are entitled only to reasonable attorneys' fees for the extra work incurred as a result of plaintiff's counsel's abuse of the judicial process. The court finds that the excessive fees were incurred by defendants in connection with defendants' defense of the dismissed § 1983 and § 1988 claims and in connection with defendants' responses to plaintiff's request for extensions of time.
The court now orders defendants to submit to the court an accounting of only those "excess fees" as described above, with supporting documentation. Defendants shall submit this accounting on or before April 15, 2003. Plaintiff's counsel shall have the opportunity to respond to the accounting on or before April 30, 2003. Thereafter, after careful review of the submitted fee amounts, the court will determine the proper amount of attorneys' fees to be assessed against plaintiff's counsel and issue its award.
• Order IT IS THEREFORE ORDERED that plaintiff's Motion to Strike (Doc. 152) and all requests raised therein are denied.
IT IS FURTHER ORDERED that defendants' Renewed Motion for Award of Attorneys' Fees and for Discovery Related Thereto (Doc. 143) is granted in part, as set forth herein. Plaintiff's counsel is sanctioned and directed to personally pay defendants damages in the nature of the extra attorneys' fees they incurred due to his abuse of the judicial process.
IT IS FURTHER ORDERED that defendants shall submit to the court on or before April 15, 2003, an accounting of only those "excess fees" as described herein, with supporting documentation. Plaintiff's counsel shall have the opportunity to respond to the accounting on or before April 30, 2003. Thereafter, after careful review of the submitted fee amounts, the court will determine the proper amount of attorneys' fees to be assessed against plaintiff's counsel and issue its award.
IT IS SO ORDERED.